Tu Phan (a Pseudonym) v The Queen; Jin Wu (a Pseudonym) v The Queen

The applicants, Tu Phan and Jin Wu, appealed to the Court of Appeal of the Supreme Court of Victoria against their convictions for trafficking a commercial quantity of a border controlled drug. The central dispute concerned the admissibility of evidence obtained through covert surveillance, specifically audio recordings made by a listening device installed in a vehicle. The applicants argued that the evidence was unlawfully obtained and should have been excluded under s 138 of the *Evidence Act 2008* (Vic).

The primary legal issue before the Court was whether the police had lawfully obtained the audio recordings. This involved determining whether the police had complied with the requirements of the *Crimes (Surveillance Devices) Act 2004* (Cth) in obtaining warrants for the installation and use of the listening device. Specifically, the Court had to consider whether the warrants were properly issued, given the nature of the information provided to the issuing officer and the scope of the surveillance authorised.

Bell and Keane JJ held that the audio recordings were unlawfully obtained. Their Honours found that the information provided to the issuing officer in support of the warrant applications was insufficient to satisfy the statutory requirements for authorising surveillance. The Court reasoned that the police had failed to demonstrate that the surveillance was necessary for the purposes of investigating the alleged offences and that less intrusive means were unavailable. Consequently, the recordings were obtained in contravention of the law, and their admission into evidence was an error.

The Court allowed the appeals, quashed the convictions, and ordered that the applicants be retried.