Discretion

Question 1

What does Section 90 of the Evidence Act legislate in relation to discretion?

Answer 1

Section 90 of the Evidence Act gives the Court the discretion to exclude admissions in criminal proceedings.

S90 states that the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if it was adduced by the prosecution and having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Question 2

What does Section 135 of the Evidence Act legislate in relation to discretion?

Answer 2

Section 135 provides the Court with a general discretion to exclude evidence.

Section 135 states that 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 3

What does Section 136 of the Evidence Act legislate in relation to discretion?

Answer 3

Section 136 of the Evidence Act gives the Court the general discretion to LIMIT the use of evidence.

S136 states that the court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a) be unfairly prejudicial to a party, or (Bauer)
(b) be misleading or confusing.

Question 4

What does Section 137 of the Evidence Act legislate in relation to discretion?

Answer 4

137 = MUST if probative value outweighed by unfair prejudice

137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Question 5

What did the case of Festa v R find in relation to unfair prejudice?

Answer 5

Evidence is not prejudicial merely because it strengthens the prosecution case: Festa v R (2001) 208 CLR 593.

Question 6

What does Section 138 of the Evidence Act legislate in relation to discretion?

Answer 6

Section 138 is an exclusion provision where improperly or illegally obtained evidence is not to be admitted. It is not admissible unless the desirability of admitting the evidence outweighs the undesirability.

138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Question 7

What is probative value?

Answer 7

As per the dictionary of the Evidence Act: The “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.

Question 8

What is caselaw for unfair prejudice?

Answer 8

R v Bauer. evidence used improperly or in some unfair way.

Unfair prejudice is harm to the interests of the Accused by reason of a risk that evidence will be used improperly in some unfair way: R v Bauer [2018] HCA 40

Question 9

When is evidence ”obtained” as per DPP v CARR?

Answer 9

DPP v CARR [2002] found that “Section 138 is targeted at conduct which is intended to elicit evidence to be used against the defendant and not situations where impropriety occurs and conduct which constitutes a crime merely follows it”.

“It requires more than a casual link. It must be conduct that was intended or expected to result from the impropriety/illegality”.

“If an offence is moderately serious and disproportionate to an ill-advised arrest, it is not obtained in consequence of an impropriety/illegality.

Question 10

What does Section 138(3) of the Evidence Act legislate in relation to discretion?

Answer 10

Section 138(3) contains some criteria against which the evidence must be considered in deciding whether the desirability of admitting the evidence outweighs the desirability of the admission of the evidence.

PINC DDAG (blood in the stool)

P.   Probative
I.    Importance
N.  Nature
C.  Contrary
D.  Deliberate/reckless
D.  Difficulty
A.  Any other proceeding
G. Gravity

Question 11

What is not unfair prejudice

Answer 11

“Evidence is not prejudicial, merely because it strengthens the prosecution case: Festa v R [2001].

Question 12

Questions of discretion and admission of evidence rely on what Standard of Proof?

Answer 12

All on the balance of probabilities (Section 142 of the EA).

142 Admissibility of evidence: standard of proof

(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding:
(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or
(b) any other question arising under this Act,

have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2) In determining whether it is so satisfied, the matters that the court must take into account include:

(a) the importance of the evidence in the proceeding, and
(b) the gravity of the matters alleged in relation to the question.

Question 13

In relation to Section 90 of the Evidence Act who is the onus on to prove that the admission of the evidence would be unfair?

Answer 13

The onus is on the Defence.

Question 14

What is the test in relation to Section 90?

Answer 14

Based on how the admission was made, it is unfair to use.

Question 15

Who is the onus on to prove that evidence of unfair admissions (as per Section 90) should not be admitted into evidence?

Answer 15

The onus is on the Defence to prove that the evidence is unfair.

*Note: only applies to criminal proceedings. Court “may” exclude or refuse to admit if adduced by prosecution and in regards to the circumstances in which the admission was made it would be unfair to the Deft to use the evidence.

Question 16

What is the test to determine whether an admission that is made would be unfair and whether the court should refuse to admit that as per Section 90?

Answer 16

Based on how it was made, is it unfair to use? (S90(b)).

Question 17

What is the focus on to prove that evidence of unfair admissions (as per Section 90) should not be admitted into evidence?

Answer 17

The focus is on HOW the admission was made.

Question 18

What is the standard of proof the defence must satisfy the court of in an application under Section 90?

Answer 18

The Defence must prove on the balance of probabilities that the admission was unfair to the defendant in order for the Court to refuse to admit the evidence.

Question 19

Who is the onus on to prove that Misleading or Confusing evidence (as per Section 135) should not be admitted into evidence?

Answer 19

The onus is on the party objecting.

Section 135 provides that the Court MAY refuse to admit evidence if it’s probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, be misleading or confusing or cause or result in undue waste of time.

Question 20

What did the case of R v Shamouli find in relation to how probative value is determined?

Answer 20

R v Shamouli found that “Probative value is determined by taking evidence at it’s highest”.

Question 21

What is the test the Court applies in relation to whether evidence should be excluded under Section 135?

Answer 21

Balancing probative vs prejudicial (which outweighs which).

Question 22

What is the focus in relation to whether probative evidence is outweighed by prejudice?

Answer 22

The focus is at the time of hearing

Question 23

What is the standard of proof the objecting party must satisfy the court of in an application under Section 135?

Answer 23

The objecting party must prove on the balance of probabilities that the probative value is substantially outweighed by the danger it may be unfairly prejudicial etc in order for the Court to refuse to admit the evidence.

Question 24

What did R v Ahmad [2002] find in relation to weak evidence?

Answer 24

R v Ahmad found that “Week evidence is not a ground for exclusion. Prosecution is entitled to prove it’s case by the accumulation of separate pieces of evidence as “strands in a cable”.

Question 25

What is the standard of proof in relation to Section 90?

Answer 25

On the balance of probabilities

Question 26

What is the focus in relation to proving whether or not the admission is unfair (Section 90)?

Answer 26

How the admission was made

Question 27

In relation to Section 135 of the Evidence Act who is the onus on to prove whether the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial or misleading or confusing or cause an undue waste of time.

Answer 27

The onus is on the party objecting

Question 28

In relation to Section 135 of the Evidence Act what is the test as to whether the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial or misleading or confusing or cause an undue waste of time.

Answer 28

Balancing the probative vs the prejudicial

Question 29

What is the focus in relation to proving whether or not the evidence is misleading or confusing (Section 135)?

Answer 29

The focus is at the time of hearing.

Question 30

What is the standard of proof in relation to proving whether or not evidence is misleading or confusing?

Answer 30

The standard is on the balance of probabilities

Question 31

What is unfair prejudice?

Answer 31

Unfair prejudice is harm to the interests of the Accused by reason of a risk that evidence will be used improperly in some unfair way: R v Bauer [2018] HCA 40

Question 32

What did the case of Festa v R find in relation to unfair prejudice and weight?

Answer 32

Evidence is only prejudicial when the jury is likely to give evidence more weight than it deserves or where the contents of the evidence may influence the jury from their task.

Question 33

Which Section of the Evidence Act relates to Unfair Prejudice?

Answer 33

Section 137.

Question 33

Who is the onus on to prove that evidence is unfairly prejudicial (as per Section 137) and should not be admitted into evidence?

Answer 33

The onus is on the Defence to convince the court on the balance of probabilities that the evidence is unfairly prejudicial.

137 is a MUST

Question 34

What is the test as to whether evidence is unfairly prejudicial (as per Section 137)?

Answer 34

Whether the probative value is outweighed by the danger of unfair prejudice. The focus is on the evidence before the court and the evidence sought to be admitted.

Question 35

What is Section 136 of the Evidence Act?

Answer 35

Section 136 is a remedy.

Section 136 provides that the court MAY limit the use to be made of evidence (but still admit it) if there is a danger that a particular use of the evidence might be unfairly prejudicial or misleading or confusing.

Question 36

Section 138(3) provides circumstances that the Court MUST take into account. What are they?

Answer 36

Without limiting the matters that the Court MAY take into account under Subsection (1), IT IS to take into account:

(a) . the probative value of the evidence, and
(b) . the importance of the evidence in the proceeding, and
(c) . the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) . the gravity of the impropriety or contravention, and
(e) . whether the impropriety or contravention was deliberate or reckless, and
(f) . whether the impropriety or contravention was contrary to or inconsistent with a right of a person (as per Intl covenant on civil and political rights), and
(g) . whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) . the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

a-h
Probative
Importance
Nature
Gravity
Deliberate/Reckless
Contrary/Inconsistent with a right
Any other proceeding
Difficulty

Question 37

What empowers the court with a general discretion to EXCLUDE evidence?

Answer 37

Section 135 is the general discretion to exclude. The court MAY refuse to admit evidence if it’s probative value is substantially outweighed by the danger that the evidence might:
(a)
(b)
(c)

Question 38

What empowers the court with a general discretion to limit the use of evidence?

Answer 38

Section 136 - the Court “may” limit the use to be made of evidence if there is a danger the use might:

(a) be unfairly prejudicial or
(b) be misleading or confusing

**This section is often applied to restrict/limit the use of evidence for it’s non-hearsay purpose when Section 60 comes into effect - so that the “in for one-in for all” principle does not apply if it is unfairly prejudicial or misleading.

Question 39

When MUST the Court exclude evidence?

Answer 39

Section 137 - the Court MUST refuse to admit evidence if it’s probative value is outweighed by the danger or unfair prejudice to the defendant.

Unlike Section 135, this is not a discretion. The court MUST exclude the evidence. It is a lower test than Section 135 because the prejudice does not need to be substantial.

The higher the the probative value, the higher the standard for the defence to prove unfair prejudice - only the defence bears the onus under Section 137.

Question 40

In conducting the balancing exercise whether probative value of evidence is outweighed by the danger or unfair prejudice to the defendant and whether to exclude the evidence, what did the case of R v Shamouli hold?

Answer 40

R v Shamouli held that, in conducting its balancing exercise in relation to Section 137, the court must:

1. Take the prosecution evidence at its highest
2. Not take into account matters of reliability/credibility
3. Take into account only relevance to establish the weight of its probative value.

Question 41

What can the court do with improperly or illegally obtained evidence?

Answer 41

As per Section 138, evidence that was obtained improperly or illegally is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that was obtained in the way it was obtained.

It is a two stage process: first establishing whether the manner in which it was obtained is improper or illegal and balancing the desirability v the undesirability and the other matters under S138(3) eg: ping diad (probative value/importance/nature of offence… etc).