Pretorius v The Queen

The High Court of Australia considered an appeal by Mr Pretorius 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 Pretorius 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 contravened the common law right to privacy and potentially statutory provisions regarding surveillance. However, the Court found that the trial judge had not erred in admitting the evidence. Applying the principles established in *Bally v The Queen*, the High Court reasoned that the probative value of the evidence was high, and while its admission carried a risk of unfair prejudice, this risk was outweighed by its importance to the prosecution's case. The Court emphasised that the discretion to admit unlawfully obtained evidence requires a careful balancing of competing interests, including the public interest in the conviction of offenders and the public interest in the lawful conduct of law enforcement.

The appeal was dismissed.