Smith v The Queen; R v Afford

The High Court of Australia considered appeals in two cases, *Smith v The Queen* and *R v Afford*, which raised common questions concerning the admissibility of evidence obtained in contravention of the *Australian Crime Commission Act 2002* (Cth) and the *Proceeds of Crime Act 2002* (Cth). The central dispute in both matters involved the admissibility of evidence obtained by the Australian Crime Commission (ACC) during investigations, where it was alleged that the ACC had failed to comply with certain statutory obligations.

The primary legal issue before the High Court was whether evidence obtained by the ACC in contravention of provisions within the *Australian Crime Commission Act 2002* (Cth) and the *Proceeds of Crime Act 2002* (Cth) was admissible in subsequent criminal proceedings. Specifically, the Court had to determine the proper interpretation of s 25(1) of the *Australian Crime Commission Act 2002* (Cth), which deals with the admissibility of evidence obtained by the ACC, and the interplay between this provision and the general discretion of courts to exclude improperly or illegally obtained evidence.

The Court reasoned that s 25(1) of the *Australian Crime Commission Act 2002* (Cth) does not operate to exclude evidence obtained in contravention of the Act, but rather preserves the common law discretion of a judge to exclude such evidence if its admission would be unfair to the accused. This discretion is to be exercised having regard to all the circumstances, including the nature of the contravention and its impact on the fairness of the trial. The Court affirmed that the statutory framework does not create an automatic bar to admissibility, but rather requires a judicial assessment of fairness.

In *Smith v The Queen*, the appeal was dismissed. In *R v Afford*, the appeal was allowed, the conviction was quashed, and a new trial was ordered.