Weiss v The Queen

The High Court of Australia considered an appeal by the applicant, Weiss, against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording of a conversation between the applicant and a police informant, and whether this evidence was improperly obtained and should have been excluded under s 138 of the *Evidence Act 1995* (NSW).

The High Court was required to determine whether the recording was obtained in contravention of any Australian law, and if so, whether the desirability of admitting the evidence outweighed the disreputability of the impropriety. Specifically, the Court had to consider whether the actions of the police informant in making the recording constituted an offence under New South Wales law, and if so, the extent to which that contravention should influence the exercise of the discretion to admit the evidence.

The Court's reasoning focused on the interpretation of s 138 of the *Evidence Act 1995* (NSW), which provides a discretion to admit evidence obtained improperly or in contravention of an Australian law. The majority held that the recording was made in contravention of s 7 of the *Listening Devices Act 1984* (NSW), which prohibits the use of listening devices without a warrant. However, the Court found that the impropriety was not so significant as to warrant exclusion of the evidence, particularly given the probative value of the recording in establishing the applicant's guilt. The Court applied the principles established in cases such as *Ridgeway v The Queen* and *Bally v The Queen* regarding the exercise of discretion to exclude improperly obtained evidence.

The High Court dismissed the appeal, upholding the applicant's conviction.