Judicial Discretion Flashcards
What is meant by Probative Value?
The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: dictionary of the EA
What does R v SHAMOUIL say about probative value?
that evidence has probative value if it is capable of supporting a verdict of guilty
probative value is determined by taking evidence at its highest (except where evidence is so incredible (R v BAuer))
What is meant by ‘Unfair’?
- Evidence that will be misused R v XY
2. It is to be determined in all the circumstances Haines v R
What is not ‘unfair’?
Evidence is not unfair just because it supports the prosecution case R v XY
What is ‘unfair prejudice’?
- Is harm to the interests of the accused by reason of a risk that evidence will be used improperly in some unfair way R v BAUER
- Jury likely to give it more weight than they should.
What is not ‘unfair prejudice’?
Evidence is not unfair merely because it strengthens the prosecution case. Festa v R.
- unreliable identification evidence
- evidence with multiple interpretations
- evidence from a witness who’s memory has faded
- weak evidence which is used as ‘strands in a cable’
What does the case of Festa v R say?
Evidence is not unfair merely because it strengthens the prosecution case.
What does section 135 say about misleading or confusing statements?
The Court MAY refuse to admit evidence if its probative value 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
What is the onus and test for 135?
Onus: objecting party
Test: probative value must substantially outweigh
Focus: how will it be used
Standard: balance of probabilities
What are the remedies to 135?
Give a warning, excise unfair portions, if warnings cannot cure then limit the evidence.
What does section 137 state about unfair prejudice?
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 the defendant.
What is the onus and test for 137?
Onus: defence
Test: probative value outweighed (by any amount) danger of unfair prejudice
Focus: how will it be used
Standard: balance
What is the difference between s135 and s137?
135 is a MAY exclude test. 137 is a MUST exclude test.
What does section 138 state about impropriety or illegality?
Evidence that was obtained improperly or in contravention of the law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
Who bears the onus under s 138?
The onus is on the objecting party.
