Discretionary and Mandatory Exclusions

Question 1

Probative value means…

Answer 1

The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Court must assume that the evidence will be accepted as both credible and reliable, unless the evidence is so lacking in credibility or reliability that a rational jury could not accept it (IMM).

Question 2

Discretionary and mandatory exclusions (list)

Answer 2

General discretion to exclude (all proceedings) (135)

General discretion to limit the use of evidence (all proceedings) (136)

Mandatory exclusion of prejudicial evidence in criminal proceedings (137)

Improperly or illegally obtained evidence (138)

Question 3

General discretion to exclude (all proceedings)

Answer 3

Section 135

The court may refuse to admit evid if it’s probative value is substantially outweighed by the danger the evid might:

(a) be unfairly prejudicial to a party
(b) be misleading or confusing
(c) cause or result in an undue waste of time
(d) unnecessarily demean the deceased in a homicide proceeding

Question 4

General discretion to limit the use of evidence (all proceedings)

Answer 4

Section 136

Court may limit the use of evid if there is a danger that a particular use of the evid might:

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

Question 5

Mandatory exclusion of prejudicial evidence in criminal proceedings

Answer 5

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 A.

Question 6

Was the evidence improperly or illegally obtained?

Answer 6

A would argue that [evidence] was obtained improperly or in contravention of an Au law OR in consequence of an impropriety or of a contravention of an Au law.

The following is taken to be improperly obtained:

• evid of an admission made as a consequence of questioning (and evid obtained as a consequence of admission) if the person conducting the questioning did or omitted to do an act even though they knew or ought reasonably to have known that the act or omission was likely to substantially impair the ability of A to respond rationally OR made a false statement in the course of questioning that they new or ought reasonably to have known was false and that making such a statement was likely to cause A to make an admission.
• evidence of a statement made or act done while a person was under arrest during questioning conducted by and investigating official who was empowered to arrest A, and, before questioning, the official did not caution A of their right to silence.
• evid of a statement made or act done during questioning conducted by an investigating official who was not empowered to arrest A, where the statement or act is made or done after the investigating official formed a belief that there was sufficient evid to establish that A had committed an offence and, before questioning, the official did not caution A of their right to silence.

Question 7

Improperly or illegally obtained evid - weighing exercise

Answer 7

The evid is not to be admitted unless the prosecution satisfies the court that the desirability of admitting the evid outweighs the undesirability of admitting evid that has been obtained in the way in which it was obtained.