Kadir v The Queen [2020] HCA 1

Kadir v The Queen [2020] HCA 1

Proof of the difficulty of lawfully obtaining evidence does not weigh in favour of admitting evidence obtained in deliberate defiance of the law. The trial judge was correct to exclude the surveillance evidence under s 138, but the search warrant evidence and admissions, though causally linked to the contravention, were admissible because the RSPCA was not complicit and the desirability of admitting this important evidence in a criminal proceeding outweighed the undesirability of doing so.

Parties
Appellant: Zeki Ray Kadir; Appellant: Donna Grech; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
05 February 2020
Procedural Posture
Criminal Appeal / High Court Appeal From Court of Criminal Appeal (nsw)
Outcome
Appeal allowed in part
Legal Topics
Admissibility of Evidence, Illegally Obtained Evidence, Serious Animal Cruelty, Discretion to Exclude Evidence, Balancing Competing Public Interests
Evidence Law Criminal Law Admissibility of Evidence Illegally Obtained Evidence Serious Animal Cruelty Discretion to Exclude Evidence Balancing Competing Public Interests

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Zeki Ray Kadir

Appellant

Donna Grech

Appellant

The Queen

Respondent

Procedural Posture

Criminal Appeal / High Court Appeal From Court of Criminal Appeal (nsw)

Legal Issues

  1. 1 Whether difficulty of lawfully obtaining evidence weighs in favour of admitting evidence obtained illegally
  2. 2 Approach to weighing factors under s 138 Evidence Act 1995 (NSW), particularly s 138(3)(h)
  3. 3 Whether trial judge erred in not assessing first recording separately

Ratio Decidendi

Proof of the difficulty of lawfully obtaining evidence does not weigh in favour of admitting evidence obtained in deliberate defiance of the law. The trial judge was correct to exclude the surveillance evidence under s 138, but the search warrant evidence and admissions, though causally linked to the contravention, were admissible because the RSPCA was not complicit and the desirability of admitting this important evidence in a criminal proceeding outweighed the undesirability of doing so.

Court Disposition

Appeal allowed in part

Orders

  • 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.