Can Improperly Obtained Evidence Still Be Used in Court?
A recent NSW Court of Appeal decision provides an important reminder about evidence obtained in questionable circumstances. Such evidence is not automatically unusable, but neither should a party assume that unauthorised access to another person’s records is a legitimate litigation strategy.
What happened in Hu v Green Estate?
In Hu v Green Estate Australia Pty Ltd [2026] NSWCA 170, decided on 21 August 2026, a witness had accessed the computer system of a former employer and extracted 11 screenshots. The opposing party objected under section 138 of the Evidence Act 1995 (NSW), which deals with evidence obtained improperly or illegally.
During the trial, concerns were raised about whether the witness’s access was lawful and whether the lawyers seeking to tender the screenshots might themselves be implicated. Those concerns led the appellants’ counsel to withdraw and their solicitors to foreshadow withdrawal. The trial judge was prepared to allow only a short adjournment for replacement lawyers to be briefed.
What did the Court of Appeal decide?
The Court of Appeal granted leave and allowed the appeal. It held that the refusal of a longer adjournment involved error and was unreasonable or plainly unjust in the unusual circumstances. The adjournment application was remitted to the trial judge for reconsideration.
Importantly, the Court explained that section 138 does not impose an absolute prohibition. Even if evidence was obtained improperly or illegally, a court may admit it where the desirability of admission outweighs the undesirability of admitting evidence obtained in that way.
The Court also stated that a lawyer is not tainted merely by asking the court to admit such evidence. Different considerations may arise if the lawyer was personally involved in obtaining it improperly or illegally.
How does section 138 operate
Section 138 requires a balancing exercise. Relevant considerations include the evidence’s probative value and importance, the seriousness and deliberateness of any impropriety, whether recognised rights were infringed, whether other proceedings may be taken, and how difficult it would have been to obtain the evidence lawfully.
The Court of Appeal did not decide whether the screenshots in Hu were improperly obtained or whether they would ultimately be admitted. Its decision concerned the adjournment and corrected the misunderstanding that lawyers become implicated simply by seeking admission of disputed evidence.
Practical lessons for litigants
Documents, emails, screenshots and electronic records can be decisive in commercial and civil disputes. However, parties should resist the temptation to access a former employer’s system, another person’s account or confidential records without authority. Doing so may create separate civil, criminal, evidentiary or costs consequences.
If potentially important material has come into your possession, preserve it without altering or circulating it and tell your solicitor exactly how it was obtained. A lawyer can then assess relevance, privilege, confidentiality, admissibility and whether lawful procedures—such as discovery, a subpoena or a notice to produce—should be used.
Sources
This article provides general information only and is not legal advice. Whether evidence is admissible depends on the facts, how it was obtained, and the issues in the particular proceeding.
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