SB v The Queen; HML v The Queen

The High Court of Australia considered appeals by SB and HML against their convictions for murder. The central dispute concerned the admissibility of evidence obtained through covert surveillance, specifically recordings made by listening devices installed in the applicants' homes. The applicants argued that the evidence was obtained unlawfully and should have been excluded by the trial judge.

The primary legal issue before the High Court was whether the evidence obtained by the police through the use of listening devices, without a warrant, was admissible in the criminal proceedings. This involved determining whether the installation and use of these devices constituted an unlawful search or trespass, and if so, whether the evidence derived from them should have been excluded under the principle of preventing unfair prejudice to the accused.

The Court analysed the common law principles relating to trespass and search, and considered the scope of police powers in the absence of specific statutory authorisation for covert surveillance. It was held that the installation of listening devices in private dwellings without a warrant constituted a trespass to land. However, the Court further considered the discretion of the trial judge to admit evidence obtained unlawfully. Applying the principles established in *Batten v The Queen* and *Ridgeway v The Queen*, the Court determined that the trial judge had correctly exercised their discretion in admitting the evidence, as the probative value of the recordings outweighed any potential prejudice to the applicants. The unlawful nature of the search did not automatically mandate exclusion, and the trial judge was entitled to weigh the competing interests.

The appeals were dismissed.