Evidence obtained by conduct that is expressly lawful in the Australian jurisdiction where it was performed is not 'improperly obtained' within the meaning of s 138 of the Evidence Act 1995 (NSW) merely because the same conduct would have been unlawful under NSW law. Section 138 focuses on the obtaining of evidence, not its presentation. A pretext telephone call made by a complainant at police request, where the complainant is not in the position of an interrogator and the other party can terminate the call at any time, does not constitute 'questioning' within s 138(2).
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