Discretionary Exclusion & Limits on Use
6.1 – General Power to exclude
Section 135 – General Discretion to exclude evidence
The court may refuse to admit evidence if its probative 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
• The purpose is to prevent admission of evidence, which has “dangers” associated with it.
• The discretion involves a balancing exercise, which on the one hand the court must consider the probative value of the evidence.
• On the other side of the balancing exercise are the factors in s135(a), (b) and (c).
Dictionary Pt 1 ‘Probative value’ definition probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
• In essence it requires an assessment of the extent of the evidence
• In order for discretion to be invoked the probative value of the evidence must be “substantially outweighed” by one of the dangers in admitting the evidence.
(a) Unfairly Prejudicial
• The evidence may be used in a way which is “logically unconnected with the issues in the case”
• It is unfairly prejudicial if there is a real risk that the jury may use the evidence in some unfair way
(b) Misleading or confusing
(c) Cause or result in undue waste of time
• This discretion is directed to saving judicial resources
Ordukaya v Hicks [2000] NSWCCA 180
Facts: A statutory declaration by a 92-year old woman was held admissible under s64(2) because a doctor's report said she was too frail to attend Ct and thus it wasn't 'reasonably practicable' to call her as a witness to give oral evidence.
Held: The statutory declaration was admissible
• S135 requires not just prejudice but unfair prejudice weighed against the probative value of the evidence
• Admission of hearsay evidence under s64 carries some prejudice because the maker could not be cross-examined but did not make the evidence unfair to the point of outweighing the high probative value of the evidence in this case
Appears to decide that on its own, procedural unfairness will not amount to unfair prejudice
• The inability to cross examine will go to the weight of the evidence
6.2 – Exclusion in criminal cases “unfair prejudice”
Section 137 – Prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
R v Lissoff [1999] NSWCCA 364
Facts: L was one of 3 defendants charged with inflicting GBH on C. Identification of L required DNA evidence. Defence challenged the integrity of this evidence on a number of pts and Trial Judge excluded evidence under s137 EA because of its complexity. Crown appealed.
Held: per Speigelman CJ, Newman and Sully JJ: Appeal upheld; Complexity is not sufficient for s137 therefore the evidence should not have been excluded
• The question of fact for the jury to decide was no more complex or difficult than questions routinely left to juries
• Juries frequently have to decide between conflicting scientific evidence
• Moreover, the trial judge applied the wrong test in relation to s137
• “The average jury, if properly assisted and directed, will do diligently and conscientiously what the law asks of it”
• “There is nothing so extraordinary about the conflict in the evidence presented in this case which would justify the conclusion that a careful and sensible jury, properly directed as to the relevant law and as to the relevant evidence, could not decide in a reasoned and responsible way whether or not the Crown has demonstrated beyond reasonable doubt that the body of evidence supporting the Crown case should be preferred to the opposed body of evidence.”
• There must be a real risk of unfair prejudice (the jury being swayed) not just a mere possibility (that the jury was swayed)
R v Dann [2000] NSWCCA 185
Facts: Dann was convicted of sexual assault of his 7 year old step-son Dr Packer’s evidence was that the step-son had dilation of the anus which could be consistent with either constipation or sexual abuse defence objected on the ground that evidence was ambivalent.
Held: Dr Packer’s evidence was capable of being used by the defence in support of a submission negating abuse. The unattractive nature of the subject matter of the doctor’s evidence did not make it prejudicial.
R v Clark [2001] NSWCCA 494
Facts: The appellant before a judge and jury on the count of murdering Lock. Evidence of his relationship with her was adduced by the prosecution. One witness gave oral evidence (hearsay) of a conversation she had with the deceased which tended to show the existence of a bad relationship.
Issue: Possible discretionary exclusion was considered, since Lock could not be cross-examined.
Held:
• The impossibility of cross-examining cannot generally justify the exclusion of evidence (under s135) or by reason of finding unfair prejudice (s137), as to do so would undermine the hearsay exceptions to the Act.
• Cross-examination of the deceased would not have assisted the appellant in an attempt to show that the relationship was sound
• It was unnecessary in this case to conclude whether the inability to cross-examine can be prejudicial, because in this case the loss of opportunity to cross-examine did not make the evidence unfairly prejudicial.
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6.3 General power to limit use
Section 136 – General discretion to limit use of evidence
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; or
(b) be misleading or confusing
6.4 Improperly Obtained Evidence
Section 138 – Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained
(a) Improperly or in contravention of an Australian law; or
(b) In consequence of an impropriety or of a contravention of an Australian law;
Is
not to be admitted unless the desirability of admitting the evidence
outweighs the undesirability of admitting evidence that has been
obtained in the way in which the evidence was obtained.
(2)
Without limiting subsection (1), 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 obtained improperly
if the person conducting the questioning:
(a) did, or omitted to
do, an act in the course of the questioning even though he or she knew
or ought reasonably to have known that the act or omission 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 he or she knew or
ought reasonably to have known that the statement was false and that
making the false statement was likely to cause the person who was being
questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)
the nature of the relevant offence, cause of action or defence and the
nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f)
whether the contravention or impropriety was contrary to or
inconsistent with a right of a person recognised by the International
Covenant on Civil and Political Rights; and
(g) whether any other
proceeding (whether or not in a court) has been or is likely ot 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.
•
First test is determine if there is illegally or improperly obtained
evidence e.g. person may have been coerced or tricked into making false
statements
• Balance desirability of bringing a wrongdoer to justice against allowing improper and illegal obtaining of evidence
Ridgeway v The Queen (1995) 184 CLR 19
Facts: Australian Federal Police in a covert drug investigation facilitated the importation of
heroin
into Australia in breach of the Customs Act 1901 (Cth). Their aim was
to secure evidence of Ridgeway possessing a traffickable quantity of
heroin. Ridgeway was convicted and charged but appealed to HCA.
Held:
The conduct by the police in obtaining the evidence was illegal. The
illegality was ‘grave and calculated police criminality’. Without the
police illegality R could not, and would not, have committed the crime
charged. Consequently evidence of the importation should be excluded.
Once this occurred the proceedings would inevitably fail so a permanent
stay of proceedings was ordered.
The integrity of the justice system
is at the focal point of the discretion. Consequently, evidence arising
from arising from serious, deliberate or entrenched police illegality
or impropriety requires exclusion.
Note: Needs to be causal link
between the illegality and the obtaining of the evidence. Goes beyond
merely obtaining evidence illegally or improperly. Can be obtained as a
result/consequence of an illegal or improper act
Section 139 - Cautioning of persons
(1)
For the purposes of section 138 (1) (a), evidence of a statement made
or an 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 the office that he or she held, to
arrest the person, and
(c) before starting the questioning the
investigating 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) For the purposes of section
138 (1) (a), evidence of a statement made or an act done by a person
during official questioning is taken to have been obtained improperly
if:
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and
(b)
the statement was made, or the act was done, after the investigating
official formed a belief that there was sufficient evidence to
establish that the person has committed an offence, and
(c) the
investigating official did not, before the statement was made or the
act was done, 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.
(3) The caution must be given in, or translated
into, a language in which the person is able to communicate with
reasonable fluency, but need not be given in writing unless the person
cannot hear adequately.
(4) Subsections (1), (2) and (3) do
not apply so far as any Australian law requires the person to answer
questions put by, or do things required by, the investigating official.
(5) A reference in subsection (1) to a person who is under
arrest includes a reference to a person who is in the company of an
investigating official for the purpose of being questioned, if:
(a)
the official believes that there is sufficient evidence to establish
that the person has committed an offence that is to be the subject of
the questioning, or
(b) the official would not allow the person to leave if the person wished to do so, or
(c)
the official has given the person reasonable grounds for believing that
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)
the official is performing functions in relation to persons or goods
entering or leaving Australia and the official does not believe the
person has committed an offence against a law of the Commonwealth, or
(b)
the 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.
DPP v Carr (2002) A Crim R 151
Facts:
Carr arrested for swearing at a policeman and subsequently charged with
resisting arrest, assaulting police and intimidating police. The
arrest, while lawful, was considered improper because such a minor
offence should have been dealt with by way of a summons. S138 used to
exclude evidence and findings of impropriety and the exercise of
discretion were challenged by the DPP.
R v Swaffield; Pavic v R (1998) 192 CLR 159 - see also in Admissions
Facts: 2 appeals, heard together, re admissibility of covertly recorded conversations which involved confessions:
1.)
Swaffield - tape-recorded conversation between accused and undercover
policeman in which accused admitted his involvement with the arson in
question
2.) Pavic - tape-recorded conversation between the accused
and a bugged friend in which accused admitted involvement with
disappearance of a man.
Held: Swaffield’s evidence inadmissible; Pavic’s evidence admissible
Where
freedom to choose whether or not to talk to police has been impugned,
court has discretion to reject the evidence as improperly obtained.
1.)
Swaffield - evidence inadmissible because it was induced by a police
officer against the accused’s right to silence here the police
officer had been ‘fishing’ for info ie very direct in conversation, and
the admission was not voluntary
2.) Pavic - evidence admissible
because, although friend was an agent of the police, the confession was
sufficiently voluntary to be admissible conversation was general in
nature, friend was not ‘fishing’ for information.
Kirby J - 4 bases for rejecting a statement by the accused acknowledging guilt:
1.) If confessional statement was involuntary
2.) If it would be unfair to the accused to admit statement
3.) If public policy considerations mean it would be unacceptable to admit the statement; or
4.) If prejudicial impact is greater than the probative value.