Discretionary and mandatory exclusions Flashcards
135 – General discretion to exclude evidence
DISCRETIONARY EXCLUSION
The court may refuse to admit evidence if its PV is substantially outweighed by the danger that the evidence might:
- be unfairly prejudicial to a party;
- be misleading or confusing;
- cause or result in undue waste of time; …
136 – General discretion to limit use of evidence
DISCRETIONARY EXCLUSION
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be—
- UNFAIRLY PREJUDICIAL to a party; or
- MISLEADING OR CONFUSING.
NB: the provision can be used to overcome the prejudicial effect of evidence so that PV is no longer outweighed (s137) or substantially outweighed (s135) by the danger of UP.
NB: when s136 is enlivened to restrict a particular use of evidence, a strong jury direction should be given both at the time of the tender of the evidence and in the judge’s summing up.
137 – Exclusion of prejudicial evidence adduced by P in criminal proceedings
MANDATORY EXCLUSION
The court must refuse to admit evidence adduced by the Prosecution if its probative value is OUTWEIGHED by the DANGER OF UNFAIR PREJUDICE to the Accused.
Process for applying s 137:
- first ascertain relevance s55
- then consider whether any exclusionary rule applies;
- if evidence is relevant and not otherwise inadmissible, court must undertake a balancing exercise between 1) PV and 2) ‘danger of unfair prejudice’ to the A.
S 137 is weighted AGAINST ADMISSION of the evidence.
Assessing probative value - HCA majority in IMM v R (2016)
‘the enquiry for the purposes of determining the PV of evidence is as to the EXTENT of that possible effect….The assessment of “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” requires that the POSSIBLE USE to which the evidence might be put, which is to say how it might be used, BE TAKEN AT ITS HIGHEST’
138(1) – Exclusion of improperly or illegally obtained evidence
DISCRETIONARY EXCLUSION.
Evidence that was obtained:
- improperly or in contravention of an Australian law; OR
- 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 that way.
NB: ONUS switches 1. party establishes illegally or improperly obtained; 2. other party argues that desirability outweighs undesirability.
138(2) - Admissions – when obtained improperly for purposes of s138
An admission is taken to be improperly obtained if the conditions of either paragraph in s138(2) are met. If so, then it is subject to discretionary exclusion under s138(1).
Evidence of an admission that was made during or in consequence of QUESTIONING, and evidence obtained in consequence of the admission, is taken to have been obtained improperly IF the person conducting the questioning—
a) (COERCIVE): did, or omitted to do, an act whilst questioning even though they knew or ought reasonably to have known that the act or omission was LIKELY TO SUBSTANTIALLY IMPAIR the ability of the person being questioned to respond rationally; OR
b) (DECEPTIVE): made a FALSE STATEMENT in the course of questioning even though they knew or ought reasonably to have known that the statement was false AND that making the false statement was likely to cause the person who was being questioned to make an admission.
139 Cautioning
UNLESS an investigating official administers a PROPER CAUTION in a range of circumstances in which a person is ‘under arrest’, the person’s statement/act will be taken to have been IMPROPERLY OBTAINED.
If a party does establish that a proper caution was not given, then the evidence was improperly obtained → s138 operates to shift the onus of proof to the party seeking to admit the impugned evidence.
