Judicial Discretion

Question 1

When are admissions inadmissible?

Answer 1

S85(2) evidence act: evidence of an admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected

Or pursuant to section 90 Evidence Act
In a criminal proceeding the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact if
A) the evidence is adduced by the prosecution and b) having regard to the circumstances in which the admission was made it would be unfair to the defendant to use the evidence.

Question 2

Is section 90 a general discretion to refuse to admit the admission due to unfairness

Answer 2

No. Must only be used havint regard to the circumstances in which the admission was made.

If the circumstanxes were fine but somerhibt they said was unfair section 90 wouldn’t operate o exclude

Question 3

Who bares the onus of proof in a section 90 Evidence Act application?

Answer 3

The onus is on the Defence to raise the possibility on the balance ot probabilities. If a legitimate question arises as to whether having regard to the circumstances admission were made it would be unfair to use the admission it falls onto the crown to establish uppn balance that unfairness is unlikely. R v Moffatt

Question 4

What is section 135 evidence act?

Answer 4

General discretion to refuse to admit evidence.

The court may reguse to admit evidence if its probative value is substantially outweighed by the danger that evidence might:
A) be unfairly prejudicial to a party
B) be misleading or confusing
C) cause or result in undue waste of time

Question 5

What is section 137 evidence act?

Answer 5

In a criminal proceeding the court must reguse to admit evidence adduced by the prosecutors if the probative value is outweighed by the danger of unfair prejudice to the defendant.

Question 6

Who can make an application for evidence t oi be excluded under section 135 ev8dence act?

Answer 6

Either party

Question 7

Who can make application for evidence to be excluded under 137 evidence act?

Answer 7

Defence only

Question 8

Who does the balancing as to exercising a discretion?

Answer 8

Magistrate or judge

Question 9

Can the magistrate see the evidence before determining if the evidence should be excluded?

Answer 9

DPP v Carr - magistrate must see the evidence.

Question 10

What is the difference between 135 and 137 of the Evidence Act?

Answer 10

1. 135 applies to civil and criminal proceedings, 137 only applies to criminal proceedings.
2. Either party can raise a s135 issue whereas 137 only applies to evidence adduced by the prosecution.
3. 135 provides a general discrerion to exclude by the use of the word MAY whereas 137 provides no discrerion and requires the evidence to be excluded.

Question 11

How would you argue against exclusion of evidence under section 135 or 137 evidence act?

Answer 11

R v Warwick: no reason to conclude that in a judge alone trial the court would apprehend the evidence and give the evidence any greater weight then it would otherwise carry nor misunderstand what is contained in the evidence. The court will have t h e benefits of submissions from both parties in relation to how the evidence should be used.

Question 12

What is section 138 evidence act?

Answer 12

Discretion to exclude evidence improperly or illegally obtained.

Evidence that was obtained
A) improperly or in contravention of an Australian law or
B ) in consequences of an impropriety or contravention of an Australian law
Is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained?

Question 13

What factors may the court take into consideration in determining an application under section 138 Evidence Act.

Answer 13

138(3) evidence act
A) the probative value of the evidence
B) the importance of the evidence in the proceeding
C) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding
D) the gravity of the impropriety or contravention
E) whether the impropriety or contravention was deliberate or reckless
F) whether the impropriety or contravention was contrary to or inconsistent with a right of a person.
Recognised by the international covenant or civil and political rights
G) whether any other proceeding have veen or likely to be taken in relation to t hhe impropriety or contravention
H) the difficulty if any of obtaining the evidence without impropriety or contravention.

Question 14

What is the authority of R vcamilleri 2007

Answer 14

Held the gravity of the offence is a factor in favour of exercising the discretion under section 138 Evidence Act.

Where the offence is serious weighs in favour of admitting the evidence.

Where impropriety is low will deadweight in fabour of admitting the evidence.

Question 15

What is meant by obtained for purposes of s138 evidence act?

Answer 15

Dpp v Carr: requires more then a casual link. It must be the conduct that was intended or expected to result from the impropriety or illegality.

Question 16

If section 138 Evidence Act applies can applicant rely on other discretion?

Answer 16

No. Em v R. If s138 applies the other discretion do not apply.

Question 17

What remedies are available under section 90, 135 and 137 e evidence act?

Answer 17

1. Warnings to alleviate unfairness s165 evidence act
2. Limit the use of the evidence under s136
3. Refuse to admit the evidence
4. Excise unfair portions of evidenxe. Eg dont take into consideration parts of erisp which may be unfair or prejudicial.

Question 18

Who bares onus of showing evidence is obtained improperly or illegally?

Answer 18

R v coulstock: once evidence is relevant and admissible the onus is on the objecting party to demonstrate impropriety

DPP v Am : once judge is satisfied section is enlivened tbe onus is on the party seeking to admit tb evidence that the desirability of admitting the evidence outweighs the undesirability.

Question 19

What is the probative value?

Answer 19

Dictionary evidence act: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability If the existence ofa factin issue

Question 20

What is unfair?

Answer 20

R x XY : unfair is evidence will be misused

Haines v R: determined in all the circumstances

Question 21

What is not unfair?

Answer 21

R v XY: evidence is not unfair just because it supports the prosecution case.

Question 22

What is unfair prejudice?

Answer 22

R v Baurer (2018) HCA: unfair prejudice is harm to tbe interests of the accused by reason that the evidence will be uses improperly in some unfair way.

Festa v R: evidence is only prejudicial when the jury is likely to give the evidence more weight than it deserves or where the contents of the evidence may influence the jury from their task.

Question 23

What is not unfair prejudice?

Answer 23

Festa v R: evidence is not prejudicial merely because it strengthens the prosecution case.

R v Shamouil: unreliable identification evidence