Preston v The Queen, Gillard v The Queen

Preston v The Queen and Gillard v The Queen concerned appeals to the High Court of Australia against convictions for murder. The central dispute revolved around the admissibility of evidence obtained through covert surveillance, specifically recordings made by listening devices. The applicants argued that the admission of this evidence at their trials was unfair and prejudicial, leading to a miscarriage of justice.

The High Court was required to determine whether the admission of the covert surveillance evidence was an error of law. This involved considering the principles governing the admissibility of evidence obtained in contravention of statutory provisions, particularly the *Listening Devices Act 1984* (NSW) and the *Crimes Act 1914* (Cth). The court also had to assess whether the admission of such evidence, even if unlawfully obtained, could be justified under the common law power to admit relevant evidence, or if it was rendered inadmissible by exclusionary rules.

The Court reasoned that the admissibility of evidence obtained in contravention of statutory prohibitions is a matter of statutory construction. It held that the *Listening Devices Act 1984* (NSW) did not render inadmissible evidence obtained in contravention of its provisions. Instead, the court applied the common law principle that relevant evidence is admissible unless its probative value is outweighed by the danger of unfair prejudice to the accused. In this instance, the court found that the evidence was relevant and that its admission did not create an unfair prejudice that would outweigh its probative value, nor did it occasion a miscarriage of justice.

The appeals were dismissed.