Chapter 6 - The functions of judge & Jury (discretion to exclude evidence)

Question 1

What does s130 of the Evidence Act provide?

Answer 1

Section 130 provides the court power to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.

Question 2

Pre-trial applications for discretionary exclusion may now be made under what section?

Answer 2

s590AA Criminal Code; voir dire

Question 3

(1) Explain the Christie discretion, (2) what the court considers when it is invoked,
(3) what the focus is, and (4) some examples.

Answer 3

1. In criminal proceeding, the court has the discretion to upon application by the defendant exclude evidence tendered by the prosecution if its admission would cause an unfairness to the person charged (Christie; s130 QEA).
2. The rationale/focus of the discretion is ensuring a fair trial, the way the evidence is obtained is a separate consideration.
3. The court will consider whether probative value of the evidence is substantially outweighed by its prejudicial value.
4. Examples include: Weak ID evidence, admissions obtained by deceptive tactics, prejudicial relationship evidence.

Question 4

(1) Explain the Ireland discretion, and (2) rationale.

Answer 4

(1) In a criminal proceeding, the court can exercise a discretion to exclude illegally or improperly obtained evidence.

(2) The power to rule unlawfully obtained evidence as inadmissible is not only concerned with fairness to an accused but also a weighing up of competing public policy requirements. On the one hand there is the goal of achieving a conviction of criminal offences and on the other hand the undesirable effect of giving judicial approval or even encouragement of unlawful conduct by police – a disregard of the law by those empowered to enforce it.

Question 5

The Bunning v Cross outlined what is to be considered when determining whether to admit illegally or improperly obtained evidence. The following are the relevant competing considerations:- 5

Answer 5

1. Whether the unlawfulness was deliberate or based on mistake
2. Do the inquiry methods effect the quality of the evidence; - Oppressive investigation or entrapment
3. the ease with which the law could have been complied with
4. How serious is the charge - The more serious less likely the public interest will be served in supressing evidence;
5. whether the legislation that made the method of obtaining the evidence unlawful suggests a deliberate parliamentary intent to restrict that method.

Question 6

The Christie discretion is focused on the concern for the [BLANK] whereas Bunning v Cross is focused on the [BLANK]

Answer 6

Individual; and public interest

Question 7

Who bares the legal onus for a party relying upon Ireland (Bunning)? and to what standard?

Answer 7

The party relying on Ireland (Bunning) bares the onus to persuade on the balance of probabilities.

Question 8

What statutes have mandatory exclusion of illegally obtained evidence?

Answer 8

1. Criminal Law Amendment Act 1894 – s 10 Confessions induced by threat or promise by a person in authority are NOT admissible unless contrary can be shown.
2. Invasion of privacy Act 1971 - evidence of private conversations unlawfully obtained are inadmissible…
3. Telecommunications Act - intercepted material without a warrant inadmissible subject to exception…

Question 9

Explain the Bunning v Cross discretion.

Answer 9

The court has the discretion to exclude evidence which is improperly or illegally obtained (Ireland; Bunning; see also s 138 CEA).

The discretion focuses on the competing public interest between ensuring convictions of serious offences but also ensuring that the courts are not seen to be giving approval to unlawful conduct by police in obtaining evidence.

The onus is on the party relying on Bunning to convince the court on BOP (Cf s 138 CEA).

The court will consider, inter alia, (1) whether the breach of law was deliberate or a mistake (2) the serious of the charge (3) whether statue sets out the method for obtaining the evidence and (4) probative value of the evidence.

Question 10

brief facts of Ireland…and Bunning

Answer 10

Ireland concerned the admissibility of evidence of accused injuries, and photographs and medical notes upon which that was based. The photographs taken against the will of the accused and the results of a medical examination without the accused doctor present….excluded…
Bunning concerned the admissibility of the results of a breathanalysing test. The test was not conducted in the accordance with the law…not excluded…

Question 12

Explain the christie discretion

Answer 12

Court has discretion to exclude prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the accused.

Evidence will not be unfairly prejudicial because it is damaging to defence case or has low probative value.

Risk of unfair prejudice arises from danger for misuse by the tribunal of fact (i.e. inflame bias, illegally obtained evidence, weak ID evidence, improper confessions) or (2) there will be some denial of procedural fairness (eg inability to cross to establish re weight of hearsay evidence).

S130 QEA; s 137