Part 3.11 - Discretionary / Mandatory Exclusions Flashcards
135 General discretion to exclude evidence (both)
Court may refuse to admit evidence if it’s PV is substantially outweighed by the danger that the evidence might:
● (a) Be unfairly prejudicial to a party (prejudice: risk jury will be misled or take something vastly inappropriate into account – TE and CE risky here particularly)
● (b) Be misleading or confusing
● (c) Cause or result in an undue waste of time; or
● (d) Unnecessarily demean the deceased in a crim proceeding for a homicide offence.
136 General discretion to limit use of evidence (both)
May limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
● (a) Be unfairly prejudicial to a party; or
● (b) Be misleading or confusing
EG TE evidence – evidence is acceptable for TE only, but not more likely to commit offence
137 Exclusion of prejudicial evidence in criminal proceedings (only)
Must refuse to admit evidence adduced by the P if its PV is outweighed by the danger of unfair prejudice to the accused. (ie, doesn’t need to be substantially outweighed by)
138 Exclusion of improperly or illegally obtained evidence (Criminal and civil proceedings)
(1) Evidence that was obtained (a) improperly or in contravention of Australian law or (b) in consequence of impropriety or contravention of Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence because of the way it was obtained.
(2) W/o limiting above, 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 improperly obtained if the person conducting the questioning:
● (a) Did or omitted to do an act in the course of questioning, even she they ought reasonably have known that was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
● (b) Made a false statement in the course of questioning even though they knew/ought reasonably have known that the statement was false and that making it was likely to cause the person who was being questioned to make an admission.
(3) W/o limiting matters to take into account in balancing exercise, court must account:
● (a) probative value of the evidence;
● (b) importance of evidence in proceeding;
● (c) nature of the offence, COA or defence and nature of subject matter of proceeding
● (d) gravity of the impropriety or contravention
● (e) whether that impropriety/contravention was deliberate or reckless
● (f) whether “”” was contrary/inconsistent with a right of person recognised in ICCPR
● (g) whether any other proceeding has been/is likely to be taken in relation to the “””;
● (h) difficulty (if any) of obtaining the evidence without impropriety or contravention
139 Cautioning of persons
(1) For the purposes of s 138(1)(a), evidence of a statement made or act done by a person during questioning is taken to have been obtained improperly if —
● (a) The person was under arrest for an offence** at the time; and
● (b) The questioning was conducted by an investigating official who was at the time empowered, because of office held, to arrest the person; and
● (c) Before starting the questioning, the official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(2) Also for the purposes of s 138(1)(a), evidence of a statement made or act done during questioning is taken to have been obtained improperly if —
● (a) Questioning conducted by IO who did not have power to arrest the person; and
● (b) Statement was made or act was done after IO formed a belief there was sufficient evidence to establish that a person had committed an offence; and
● (c) IO did not, before statement was made or act done, caution the person as above
(3) Caution must be given in/translated into language in which person able to communicate with r’ble fluency, but need not be given in writing unless person cannot hear adequately.
(4) Subsections (1)-(3) don’t apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.
**(5) reference to being under arrest includes reference to a person who is in the company of an investigating official for the purpose of being questioned if:
● (a) Official believes there is sufficient evidence to establish the person committed the offence the subject of the questioning; or
● (b) Official would not allow the person to leave if the person wished to do so; or
● (c) Official has given the personal RG for believing the person would not be allowed to leave if he or she wished to do so.
(6) A person is not treated as being under arrest only because of subsection (5) if—
● (a) official is performing functions in relation to persons/goods entering/leaving Australia and doesn’t believe person has committed an offence against Cth law; or
● (b) official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions
Jones v Dunkel
Jones v Dunkel – if suggested that party has failed to call witness or tender documents / other evidence and its significant – could give rise to inference that it would not have assisted party. = inference needs to be open in the first place
Situation now – still applies in civil cases, replaced by section 43 of the Jury Directions Act in criminal cases (note this completely replaces common law – applies to prosecutor calling witnesses ONLY – to unexplained failures only – and no reasonable explanation (eg, efforts made by P to find witness, but unsuccessful)). Goes hnd-hnd with case in chief. – doesn’t apply to A, because has no obligation. Involves forensic attack on plaintiff or prosecution.
can conclude witness would not have assisted P case.
