Swan v The Queen

The High Court of Australia considered an appeal by Swan against a conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by a police informant. The High Court was required to determine whether the admission of this evidence, despite its potentially unlawful origin, was justified under the circumstances.

The primary legal issue before the Court was whether the admission of evidence obtained in contravention of a statutory prohibition on covert recordings, specifically section 138 of the *Evidence Act 1995* (NSW), was an error. This involved considering the discretion afforded to the trial judge to admit such evidence if its probative value outweighed the public interest in preserving the administration of justice by excluding improperly or illegally obtained evidence.

The High Court reasoned that the discretion under section 138 required a balancing exercise, weighing the seriousness of the contravention against the importance of the evidence. The Court affirmed that the unlawful nature of the recording was a significant factor, but not determinative. It held that the trial judge had properly exercised their discretion by considering all relevant factors, including the reliability of the evidence and the potential prejudice to the accused, and concluded that the probative value of the recording outweighed the public interest in its exclusion. The appeal was accordingly dismissed.