6. Discretion to exclude evidence Flashcards
Overturning a truly discretionary decision
Can only be overturned where a House v the King error is shown
Not enough that an appellate court consider that, had they been in the primary judge’s position, they would have taken a different course.
Must be that some error has been made in the exercising of a discretion.
For example: acting upon a wrong principle, allowing extraneous or irrelevant matters, or makes a mistake of fact.
Discretion to exclude in criminal proceedings
At common law: where prejudicial effect exceeds probative value.
This is a discretion, unlike s 137 of the EAC which creates a duty.
Commonly applied to similar fact evidence but can apply more generally.
When prejudicial effect will exceed probative value
Not prejudicial merely because it assists the prosecution. Will be prejudicial only if:
(a) Jury likely to give the evidence more weight than it deserves;
(b) Nature or content of the evidence may inflame the jury or distract the jurors from their tasks
Miscellaneous examples of discretions to exclude
Discretion to disallow cross-examination as to an accused’s criminal record
Discretion to reject confession if to use it would be unfair against accused
Discretion to reject evidence, including confessions, on the grounds it has been unlawfully obtained (see also Bunning v Cross)
Statutory discretions to exclude evidence (EAC)
Sections 135-138
135: general discretion to exclude evidence [no common law equivalent of this]
136: general discretion to limit use of evidence
137: exclusion of prejudicial evidence in criminal proceedings
138: discretion to exclude improperly or illegally obtained evidence
In assessing s 137 - probative value of the evidence must be taken at its highest.
In assessing unfair prejudice of evidence, assess the weight of the evidence.
Where it is evidence has very high probative value and weight, unlikely to be excluded.
