Discretion

Question 1

Section 90 Unfair Admissions does what?

Answer 1

The court may refuse to admit evidence of an admission to prove a fact if:
The prosecutor adduced the evidence and
due to the circumstances the admission was made, it would be unfair to the defendant.

Question 2

Section 90 Unfair Admissions four steps?

Answer 2

Onus - On defence
Test - Unfair to use
Focus - How the admission was made’
Standard - Balance S. 142

Question 3

Section 135 General rule of exclusion has what criteria?

Answer 3

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
(b) be misleading or confusing
(c) result in undue waste of time.

Question 4

What is meant by Probative value?

Answer 4

How relevant something is to proving a fact in the matter.

Question 5

R v Shamouil says what about probative value?

Answer 5

Probative value is determined by taking the evidence at its highest.

Question 6

What are the four steps in S.135 General rule to exclude evidence?

Answer 6

Onus - Objecting Party
Test - Balancing probative value over the prejudice.
Focus - At the time of hearing
Standard - Balance

Question 7

What is meant by unfair prejudice?

Answer 7

R v Bauer defines unfair prejudice as something that is harmful to the interest of the accused by reason of a risk that evidence will be used improperly in some unfair way.

Question 8

What does R v Fiesta say about unfair prejudice?

Answer 8

Evidence is not prejudicial merely because it strengthens the prosecution case. R v Fiesta.

Question 9

Section 136 limiting evidence says what?

Answer 9

The court may limit the use of evidence that might:

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

Question 10

R v Bauer says what?

Answer 10

Unfair prejudice is harm to the interest of the accused by reason of a risk that evidence will be used improperly in some unfair way.

Question 11

What does Section 137 Unfair Prejudice say?

Answer 11

In a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if it’s probative value is outweighed by the danger of unfair prejudice to the defendant.

Question 12

What are the four steps for Section 137 Unfair Prejudice?

Answer 12

Onus - Defence
Test - Probative value v Prejudice
Focus - In proceedings
Standard - Balance of probabilities

Question 13

What is the term for degree to which a thin is relevant to a fact in issue?

Answer 13

Probative Value.

Question 14

Section 138 Impropriety or Illegality says what?

Answer 14

Evidence that was obtained:
(a) Improperly or illegally
(b) as a result of the illegality
Is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained.

Question 15

What is the four steps for Section 138?

Answer 15

Onus - Objecting Party
Test - Desirability v Undesirability
Focus - How was the evidence obtained
Standard - Balance of probabilities.

Question 16

Sub Section (3) of 138 gives a non limiting list of factors to take into account what are they?

Answer 16

(a) Probative value of the evidence
(b) Importance of the evidence in the proceeding
(c) The nature of the relevant offence
(d) Gravity of the breach
(e) Whether the breach was deliberate or reckless
(f) Whether breach was contrary to Human Rights
(g) Whether other proceeding is or likely to be taken for the breach.
(h) Difficulty in obtaining the evidence without breaching.
DRIPPING