Mandatory and discretionary exclusions

Question 1

S135 - application

Answer 1

Discretionary exclusion for both civil and criminal proceedings

Question 2

What is s135 exclusion?

Answer 2

The court MAY refuse to admit evidence if its probative value is substanatially 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; or
d - unnecessarily demean a deceased in a criminal proceeding in a homicide matter.

Question 3

How a piece of evidence can be unfairly prejudicial?

Answer 3

where there is a risk that the tribunal of fact may misuse the evidence in some way.
normally relevant to trials by jury.

Question 4

How can a piece of evidence be misleading or confusing?

Answer 4

where there is a danger that the jury will unduly focus on the evidence and give it more significance than it deserves (Ie DNA evidence)

Question 5

When would a piece of evidence cause or result in undue waste of time

Answer 5

Evidence about a matter which is known to all, although admissible, would normally be a waste of time.

Question 6

S136 - application

Answer 6

limits the use of evidence - all proceedings

Question 7

what is s136 exclusion?

Answer 7

S136 permits the court to limit the use of evidence where there is a DANGER that the evidence might
a- be unfairly prejudicial to a party; or
b - be misleading or confusing.

Question 8

What is the effect of s136 application?

Answer 8

If used, it can overcome the prejudicial effect of evidence to the extent that the PV is no longer outweighed by unfair prejudice (s135) or substantially outweighed by that danger (s137)

Question 9

Link between s136 and Jury Direction

Answer 9

A strong jury direction with respect to the limited use of the evidence should be given both at the time of tender and at the time of summing it up.

Question 10

Examples of s136 use

Answer 10

Hearsay evidence - s60
- if evidence of a previous representation is admitted as relevant to credibility then it could be used as hearsay evidence (relevant for a non hearsay purpose) - s136 can be invoked to limit the hearsay use of that prior representation.
Opinion evidence - s77
- if evidence is led for other purposes and contains opinion evidence - s136 can be used to limit its use as opinion evidence.

Question 11

What is the s137 exclusion?

Answer 11

Mandatory exclusion - only in criminal proceedings

Question 12

What is the effect of s137 exclusion?

Answer 12

Exclusion of prejudicial evidence in criminal proceedings
In criminal proceedings, the court MUST refuse to admit evidence adduced by P if its PV is outweighed by the danger of unfair prejudice to the accused.

Question 13

Do you need an objection for s137 exclusion?

Answer 13

NO - it is a mandatory exclusion
if not objection is made, no requirement on the judge to act on their own motion. HOWEVER, in criminal proceedings, there is an obligation to intervene and to alert the parties to such issues.

Question 14

How is s137 applied in practice?

Answer 14

1 - is evidence relevant?
2 - if relevant, then the court MUST take a balancing exercise between PV of the evidence and the danger of unfair prejudice (IMM)

Question 15

What is probative value (PV)?

Answer 15

The extent to which the evidence can rationally affect the assessment of the probability of a fact in issue

Question 16

Is there a danger of unfair prejudice (s137)

Answer 16

NOT DEFINED
ALRC indicates that it is intended to cover evidence which would introduce adverse and irrational considerations or cause the jury to give the evidence mor significance than it deserves.
NOTE:
Evidence WILL NOT be unfairly prejudicial to an A just because it increases the likelihood of conviction.

Question 17

What is s138 exclusion?

Answer 17

Exclusion of improperly/ illegally obtained evidence

Question 18

What is improperly/ illegally obtained evidence

Answer 18

Evidence that was obtained
a - improperly or in contravention of Aus law
b - in consequence of an impropriety or a contravention of an Aus law

Question 19

What is the effect of s138 exclusion?

Answer 19

improperly/ illegally obtained evidence CANNOT be admitted unless
the desirability of admitting the evidence OUTWEIGHS the undesirability of admitting the evidence

Question 20

S138 - who bears the onus

Answer 20

Initially, the person who seeks to exclude the evidence - to establish that the evidence falls under s138
THEN, the party seeking admission bears the onus to persuade the court that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

Question 21

What is desirability of admitting evidence in s138

Answer 21

Just punishment of criminals
upholding the integrity of the legal system

Question 22

What is undesirability of admitting evidence under s138

Answer 22

public interest consideration
the extent to which law enforcement officials act outside authority
deterring future impropriety or illegality
protecting individual rights
encouraging fair policing

Question 23

when evidence is taken to be obtained improperly during questioning - s138(2)

Answer 23

when the person conducting questioning:
- did or omitted to do an act in the course of questioning even though he knew that was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
- made a false statement knowing statement to be false and knew was likely to cause an admission.

Question 24

S90 EA vs s138 EA

Answer 24

S90EA
- discretion to exclude admissions adduced by pros if it would be UNFAIR to A to use the evidence (having regard to circumstances
S138
- s138 requires the party seeking to exclude the evidence to establish that it was obtained improperly or illegally
- s138 is focused on the desirability of admitting the evidence

Question 25

Cautioning of persons - s139

Answer 25

the person’s statement or act is taken to have been improperly obtained UNLESS the investigating official administers a proepr caution in a range of circs in which the person is under arrest
If A establishes that a proper caution was not given, s 138 operates to shift the onus on the party who is seeking to admit the evidence.

Question 26

Factors to be taken account when considering the desirability of admitting evidence vs undesirability of admitting the evidence - s138(3)

Answer 26

1. PV to evidence
2. the importance of the evidence in the proceedings
3. the nature of the relevant offence, cause of action or defence .. and the proceeding
4. The gravity of impropriety or contravention
5. Whether the impropriety was contrary to ICCPR
   6 - whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention
   7 - the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Aus law

Question 27

Other to be taken account when considering the desirability of admitting evidence vs undesirability of admitting the evidence - s138(3)

Answer 27

1. Unfairness to a defendant
2. Whether police illegality is entrenched (Ridgeway)
3. The legislature’s intention when misconduct breaches a statutory provision (Bunning v Cross)
4. Whether the police conduct is the principal offence of, or is integral to, the charged offence;
5. Whether disciplinary action is taken (Rideway v R)
6. The role of the unlawfulness or impropriety in inducting the charged offence (Ridgeway v R)
7. Whether the rights of the accused have already been compromised by illegality or impropriety (R v Malloy)
8. Whether it can be inferred that Parliament ‘applied its mind’ and intended to provide that certain conduct should not be lawful.’

Question 28

What is s101 exclusion?

Answer 28

Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.