Discretionary exclusionary: Christie; Bunning etc Flashcards
What is s 130 QEA?
s 130 QEA court has discretion to exclude evidence which would be unfair to the person charged to admit that evidence.
This reflects the common law Christie discretion
R v Christie - what is the Christie discretion ? what is its rationale?
CL - To ensure a fair trial for the accused, the court has the discretion to exclude prosecution evidence where the risk of misuse by the jury outweighs it’s probative value (i.e. improperly obtained confessions, weak ID evidence, photographs so graphic which may inflame the bias of the jury, evidence from person unsound of mind, relationship evidence which is too prejudicial).
The risk refers to the jury attributing undue weight to evidence, or making an emotional assessment of the evidence.
What sections of the QEA or CEA contain the Chrisite Discretion?
s 130 QEA’ s 137 CEA
What does s 137 CEA state?
s 137 CEA court must refuse to admit evidence adduced by the prosecution where its probative value outweighs the danger of unfair predjudice of the defendant
What is the Ireland/Bunning discretion?
CL - On public policy grounds, the court has the discretion to refuse the admission of evidence which has been unlawfully or improperly obtained. The court must balance various factors such as: (1) the serious of the offending (2) the gravity of the contravention of the law (3) where the breach was deliberate or a mistake (4) the ease of which the law could have been complied with (5) probative value of the evidence (6) the importance of the evidence in the proceeding etc
The rationale for the rule is that the courts should countenance law enforcement authorities unlawfully obtaining evidence, however this should be balanced against the public interest in ensuring convictions of serious criminal offences.
What is the difference in rationale between the Christie Discretion and Ireland/Bunning?
The focus of Christie is to ensure a fair trial for the accused by not allow prosecution evidence to be tendered where the risk of misuse of the evidence outweighs its probative value where as the focus on bunning is to public policy considerations…the courts should not countenance the obtaining of evidence unlawfully by allowing its admission in proceedings, however that is to be balanced against the public interest in ensure convictions for serious criminal offences.
What was Bunning and Ireland about?
Bunning - Drink driving case where police officer failed to strictly comply with relevant PPRA sections regarding breatho testing…evidence was still admitted
Ireland - Photographs of the accused’s injuries, and doctors notes of an assessment of the accused where unlawfully obtained…the evidence was circumstantial evidence of the accused involvement in the offence…the evidence was excluded.
What does s 138 CEA set out?
s 138 CEA codifies bunning/ireland discretion to excluded unlawfully or improperly obtained evidence…ss3 sets out the factors
When is there mandatory exclusion if the law is not followed give two examples…
Evidence of telephone conversations without a warrant (telecommunications act (cth), and admissions obtained by inducement s 10 criminal law amendment act
