Judicial discretion

Question 1

Ireland discretion (public policy) - what UEA provision is it reflected in? What is the most common situation the discretion is exercised? Detail Bunning and Cross.

Answer 1

• cops told accused he had to have photos of his hands taken.
• photos connected accused to murder weapon.
• statutory provisions regarding the photographing of hands were not followed.

Unlawfulness itself does not make the evidence inadmissible…when there is unlawfulness or unfairness, competing public requirements must be weighed against each other

Most common in situations where the accused has not been informed of their right to silence.

s 138 (UEA)

• legislation required preliminary test unless there were reasonable grounds to believe the person was under the influence.
• co-operatively submitted to a breathalyser
• nothing unlawful about obtaining a sample from someone who is co-operative and willing

s 138

Question 2

What are the factors considered in a Christie/Lee discretion? What situations is it commonly given in and are any directions relevant?
what UEA provision is it reflected in?
what EAQ provision is it reflected in?

Answer 2

• Prevent improperly obtained evidence resulting in unfairness to the accused; induced by threat or promise (R v Lee).
• Most common in situations where the accused has been verballed by police (McKinney direction) requires the jury to corroborate the confession with some other evidence.
• a covert recording is not implicitly unfair, it must be of the persons own free volition (EM).
• 90, 135(a) (UEA)
• 98, 130 (EAQ)
• unfairness discretion has found its way into Qld legislation under s 130 of the EAQ

Question 3

What are the two relevant cases for unlawfully obtained evidence resulting in unfairness to the accused

Answer 3

Christie and Lee

Question 4

What are the three cases relevant for improperly obtained evidence on public policy grounds

Answer 4

Ireland; Bunning v Cross; R v Long

Question 5

What are 3 different jury directions and when is it appropriate to give such directions?

Answer 5

Domican - id evidence
Longman - forensic disadvantage
McKinney - unlawfully obtained resulting in unfairness to the accused

Question 6

What is the Christie discretion based on, and what is the key question in deciding fairness?

Answer 6

Where there is no illegality but unfairness to the accused.
The probative value of which is outweighed by the danger of unfair prejudice to the defendant. Was it voluntary.

Question 7

What is the Ireland discretion based on? Two cases to use?

Answer 7

Public policy. Have the police broken the law and, if they have broken the law, does the unfairness to the accused outweigh public interest (Bunning v Cross). R v Long (was the confession reliable)

Question 8

What factors are considered in an Christie/Lee discretion?

Answer 8

• Was the accused induced by a promise (Lee)
• was the accused verballed by police (McKinney).
• has the statement been given of the accused’s free volition (Em).

Question 9

what is the key factor in cases that involve a confession on public policy grounds and what is the key factor in a confession on fairness grounds?

Answer 9

reliability for public policy and voluntariness for fairness grounds

Question 10

What is the strongest common law principle of evidence?

Answer 10

accused’s right to silence

Question 11

What is the hearsay exception for an admission?

Answer 11

Edwards v R. What an accused is prepared to admit contrary to his own interests is likely reliable