Discretion

Question 1

s 90 Evidence Act?

Answer 1

Discretion to exclude admissions.
In a criminal proceedings, 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 (not might) be unfair to a defendant to use the evidence.

Question 2

What does the MAY mean in the legislation?

Answer 2

The MAY is the discretion.

Question 3

S90

Onus, test, focus, standard?

Answer 3

Onus - Defence
Test - Based on how it was made it is unfair to use.
Focus - Circumstances under how it was made.
Standard - Balance

Question 4

S135 Evidence Act?

Answer 4

The court MAY refuse to admit evidence if it’s probitive value is substantially outweighed by the danger that the evidence MIGHT:

a) Be unfairly prejudicial to a party, or
b) Be misleading or confusing, or
c) Cause or result in undue waste of time.

Question 5

What’s probative value?

Answer 5

The extent to which it’s relevant.

Question 6

s135.

Onus, test, focus, standard?

Answer 6

Onus - party objecting
Test - Balancing act between probative value and prejudiced effect.
Focus - Time of hearing
Standard - Balance

Question 7

Unfair prejudice and case?

Answer 7

R v Bauer 2018

Harm to the interests of the accused by reason of a risk that evidence will be used improperly in some unfair way.

Question 8

Case on what is not unfair prejudice?

Answer 8

Festa v R 2001

Evidence is not prejudicial merely because it strengthens the prosecution case.

Question 9

s 136?

Answer 9

REMEDY
The court 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
b) Be misleading or confusing.

Question 10

S137?

Answer 10

In a criminal proceeding, the court MUST refuse to admit evidence adduced by the prosecutor if it’s probitive value is outweighed by the danger of unfair prejudice to the defendant.

Question 11

S 137 Onus, test, focus, standard?

Answer 11

Onus - Defence
Test - Does probative value outweigh danger of unfair prejudice
Focus - Evidence at court
Standard - balance

Question 12

S 138 (1)?

Answer 12

Improperly or illegally obtained.
1) Evidence that was obtained:
a) Improperly or in contravention of an Australian law, or
b) In cosequence of an impropriety or of a contravention of an Australian law,
Is not to be admitted unless the desirability of admitting the evidence outwieghs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained.

Question 13

S 138 Onus, test, focus, standard

Answer 13

Onus - Party asserting
TEst - 1. Illegally, improperly obtained.
2. The desirability of admitting the evidence outweighs the desirability of excluding it.
Focus - How the evidence was obtained.
Standard - Balance.

Question 14

S 138 (3)?a-h PINGDCPD

Answer 14

Without limiting the matters the court may take into account under sub section (1), it is to take into account:

a) Probative value of the evidence, and
b) The importance of the evidence in the proceeding, and
c) Nature of the relevant offence, cause of action or defence and nature of subject matter of proceeding
d) Gravity of the impropriety of contravention
e) Whether the impropriety or contravention was deliberate or rekless.
f) Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the international convent on civil and political rights, and
g) Whether any proceeding (whether or not in court) has been or is likely to be taken in relation to the impropriety or contravention, and
h) The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Question 15

Standard of proof and section?

Answer 15

Balance, S142 Evidence Act.