Kadir v The Queen [2020] HCA 1

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ

Matter No S160/2019

ZEKI RAY KADIR APPELLANT

AND

THE QUEEN RESPONDENT

Matter No S163/2019

DONNA GRECH APPELLANT

AND

THE QUEEN RESPONDENT

Kadir v The Queen Grech v The Queen [2020] HCA 1 Date of Hearing: 15 October 2019 Date of Judgment: 5 February 2020 S160/2019 & S163/2019

ORDER

Matter No S160/2019

1. Appeal allowed in part.

2. Set aside order 1 of the orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 30 November 2017 and, in its place, order that the appeal from the ruling of Judge Buscombe made on 28 June 2017 with respect to the admissibility of the surveillance evidence be dismissed.

Matter No S163/2019

1. Appeal allowed in part.

2. Set aside order 1 of the orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 30 November 2017 and, in its place, order that the appeal from the ruling of Judge Buscombe made on 28 June 2017 with respect to the admissibility of the surveillance evidence be dismissed.

On appeal from the Supreme Court of New South Wales

Representation

G O'L Reynolds SC with D P Hume and R W Haddrick for the appellant in S160/2019 (instructed by Michael Bowe)

T A Game SC with K J Edwards and K I H Lindeman for the appellant in S163/2019 (instructed by Legal Aid NSW)

H Baker SC with H R Roberts and B K Baker for the respondent in both matters (instructed by Director of Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Kadir v The Queen Grech v The Queen

Evidence – Admissibility – Evidence obtained improperly or in contravention of Australian law – Evidence Act 1995 (NSW), s 138 – Where appellants jointly charged on indictment with acts of serious animal cruelty – Where prosecution proposes to tender video-recordings obtained in contravention of Australian law – Where prosecution proposes to tender search warrant evidence and alleged admissions obtained in consequence of contravention of Australian law – Whether difficulty of lawfully obtaining evidence weighs in favour of admission – Whether weighing of competing public interests under s 138 different for evidence obtained in contravention of law as compared to evidence obtained in consequence of contravention of law – Whether each item of evidence admissible.