Section 138 of the Evidence Act 1995 (NSW) requires a balancing of competing public interests — obedience to the law in gathering evidence versus enforcement of the law against offenders — and personal prejudice to the accused is not a material consideration in that exercise. Where evidence is obtained through an innocent breach of law (such as a nurse acting in good faith under a mistaken belief of legal obligation), only minimal impropriety is involved, and where the offence is serious and the evidence highly probative, the balance will generally favour admission. Powerful countervailing considerations are required to exclude evidence where the breach was innocent and the offence serious.
The full text is available to signed-in members, including the 16 later cases that cite this judgment.
3 of the 16 citing cases carry a classified treatment. How each court treated it is available to signed-in members.