Em v The Queen

Facts

Police obtained covert recordings of conversations between the appellant Em and an undercover operative in which Em made incriminating admissions about his involvement in a murder. The recordings were obtained without a warrant and without Em being cautioned, in circumstances where police had deliberately chosen to use undercover methods rather than formal questioning. Em challenged the admissibility of the recordings at trial on the ground that they had been obtained by improper or unlawful means.

Issues

1. Whether the covert recordings were obtained in contravention of s 139 of the Evidence Act 1995 (NSW) (requirement to caution a suspect before questioning). 2. Whether, if so, the evidence should be excluded under s 138 of the Evidence Act 1995 (NSW) as evidence obtained improperly or unlawfully. 3. How the discretionary balancing exercise under s 138 should be conducted, including the weight to be given to the probative value of the evidence and the seriousness of the impropriety.

Holding

The High Court (by majority) held that the covert recordings were not obtained in contravention of s 139 because that provision applies to overt questioning by persons in authority and not to covert conversations with undercover operatives; accordingly the evidence was admissible and there was no occasion to exercise the exclusionary discretion under s 138.

Ratio decidendi

Section 139 of the Evidence Act 1995 (NSW) imposes a requirement to administer a caution only in the context of overt questioning of a suspect by a person known to the suspect to be a law enforcement officer; it does not apply to conversations obtained through covert undercover operations, and evidence obtained by such means is not thereby rendered improperly or unlawfully obtained for the purposes of s 138.

Obiter dicta

The majority offered guidance on the proper approach to the s 138 discretion, emphasising that the balancing exercise requires a court to weigh the desirability of admitting probative evidence against the undesirability of admitting evidence obtained in the manner in question, having regard to all the circumstances listed in s 138(3), including the gravity of the offence and the deliberateness of the impropriety. Gleeson CJ and Heydon J (in separate reasons) noted that even had s 139 applied, exclusion under s 138 would not necessarily have followed given the serious nature of the offence and the significant probative value of the recordings.

Significance

Em v The Queen is the leading High Court authority on the scope of the s 139 caution requirement and the operation of the s 138 exclusionary discretion under uniform Evidence Act legislation in Australia, and is regularly applied in determining the admissibility of confessional evidence and evidence obtained by police in circumstances of alleged impropriety.

Key authorities

• Bunning v Cross Bunning v Cross (1978) 141 CLR 54considered
• R v Swaffield; Pavic v The Queen R v Swaffield; Pavic v The Queen (1998) 192 CLR 159considered
• Ridgeway v The Queen Ridgeway v The Queen (1995) 184 CLR 19considered
• Pfennig v The Queen Pfennig v The Queen (1995) 182 CLR 461cited
• R v Em R v Em [2003] NSWCCA 374considered