Discretion

Question 1

S135 of the evience act– what are 3 things to know?

Answer 1

135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger
that the evidence might–
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.

Question 2

What is probative value – what is the authority behind it

Answer 2

“probative value” of evidence means the extent to which the evidence could rationally affect the
assessment of the probability of the existence of a fact in issue.

IMM v The Queen

Question 3

What is unfair prejudice – what is the authority behind it

Answer 3

by reason of a risk that the jury will use the evidence improperly in some unfair way: R v
Bauer [2018] HCA 40 at [73]

Question 4

What should you submit on about 138 argument in regards to propriety?
What is the standard of proof for this?

Answer 4

1. the existence of the Act
2. that the Act was Improper or Illegal
3. Evidence wasn’t Obtained by, or in consequence of, such conduct
4. desirability and undesirability of admitting the evidence

Standard of Proof = Balance of Probabilities