Elements of Evidence 2 Flashcards
Unfairness is a matter of…
How does it arise? (2)
Unfairness is a matter of discretion for the trial judge. It usually arises in two ways:
-evidence may be excluded if it would result in some UNFAIR PREJUDICE in the proceeding.
-evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been OBTAINED in circumstances that would make its ADMISSION against the defendant UNFAIR, e.g. defendant statement obtained by unfair or improper methods.
S8 Test - General Exclusion
S8 - General Exclusion
(1) In any proceeding, the judge MUST exclude evidence if its probative value is outweighed by the risk that the evidence will:
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the judge MUST take into account the right of the defendant to offer an effective defence.
“Unfair Prejudice”
“Needlessly Prolong”
Typically refers to the danger that a trier of fact will give some piece of evidence more weight than it deserves, be misled by evidence, or use evidence for an illegitimate purpose.
A defendant could call 20 witnesses to give evidence as to his/her veracity. S8(1)(b) could be used by the judge to limit the evidence to one or two witnesses.
Admission by agreement
S9(1) of the Act allows for admission of evidence, even if it is not otherwise admissible, where the parties agree.
The court in R v Hannigan highlighted that the judge retains control of this process and may decline to admit the evidence even if all parties agree to its admission, or not allow its admission in the form agreed to by the parties.
Provisional admissibility
S 14 provides that, where a question arises concerning the admissibility of any evidence, the judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility.
If the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration.
Hearing in chambers
S 15 governs evidence given by a witness to prove facts necessary for deciding whether some other evidence should be admitted in a proceeding. Commonly referred to as a “hearing in chambers” or “chambers hearing,” particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing.
Facts determined at a hearing in chambers are sometimes referred to as “preliminary facts” or “preliminary hearing.”
Who/what does S 15 apply to?
S 15 applies to all witnesses (not only defendants), and to evidence given in any type of hearing held to determine the admissibility of evidence.
Evidence given at a hearing in chambers will be admissible in other stages of the proceeding ONLY IF the evidence given by the witness at this hearing is inconsistent with the witness’ subsequent testimony at another stage of the same proceeding. It is admissible in order to demonstrate the inconsistency.
Limited use of evidence and use for multiple purposes
Provisions
Admissible evidence may be used in different ways and for different purposes in a proceeding, not necessarily only for the purpose for which it had been admitted.
Supreme Court in Hart v R: “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”
S27 - controls the use of pre-trial statements of defendants and co-defendants
S31 - forbids the prosecution from relying on certain evidence offered by defendants in a criminal case.
S32 - forbids the fact-finder from using a defendant’s pre-trial silence as evidence of guilt.
Judicial warnings re reliance on some types of evidence for certain purposes (S124 - evidence that the defendant has lied).
