LLW4007 Topic 8 Excluding Evidence Powers and Discretions PDF

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Excluding Evidence_Powers and Discretions...

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LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

Recap: s.90 gives the court the discretion to exclude evidence of an admission adduced by the prosecution in a criminal proceeding on grounds of unfairness to the accused What about evidence obtained improperly or even illegally? Counter-intuitively, there is no blanket provision in the Evidence Act that renders such evidence absolutely inadmissible. However, the court has powers to:  exclude otherwise admissible evidence; and  limit the use of evidence already admitted. s.135 to s.139 confer these powers on the court. 1 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

 s.135: general discretion to exclude evidence on grounds that its probative value is substantially outweighed by the danger that the evidence might: o be unfairly prejudicial to a party o be misleading or confusing o cause or result in an undue waste of time o in criminal proceeding for homicide offence, unnecessarily demean the deceased  s.136: general discretion to limit the use of evidence  s.137: in criminal proceedings, mandatory exclusion of prosecution evidence, where the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant  s.138: discretion to exclude evidence on grounds that it was improperly or illegally obtained (to be covered separately). 2 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

s.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) (b) (c) (d)

be unfairly prejudicial to a party; or be misleading or confusing; or cause or result in undue waste of time; or unnecessarily demean the deceased in a criminal proceeding for a homicide offence.

 s.135 applies to both civil and criminal proceedings  Court has general discretion to exclude evidence that is otherwise admissible, on any of 4 grounds 3 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

Note: At common law:  Discretion exists only in criminal proceedings.  Civil cases: Discretion to exclude evidence depends on whether the evidence has sufficient relevance to the case or the issues in dispute. Discretion to exclude evidence that is unfairly prejudicial extended to civil proceedings under the uniform evidence legislation. Focus on 1st ground: The probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to a party.

4 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

“probative value” Court required to assess probative value of the evidence when exercising its discretion under sections 135, 137 and 138. Dictionary: 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. Compare definition of relevant evidence in section 55(1): The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 5 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

So, probative value essentially means “how relevant?” i.e. the degree of relevance of the evidence to a fact in issue compared to other evidence which may have already been admitted. Example:  A piece of evidence on its own may be highly relevant to a fact in issue  However, compared to other evidence already admitted relevant to the same fact, this particular piece of evidence may only be marginally relevant to the assessment of the probability of the existence of the fact.  This piece of evidence may add very little to how the fact-finder will assess the existence or otherwise of the fact in issue.  It may well be that this particular evidence could be excluded, without materially affecting that assessment. 6 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

Definition of probative value does not include the words if it were accepted that appears in the definition of relevance in s.55.  Suggests that in assessing the probative value of a piece of evidence, unlike when assessing relevance under s.55, court need not assume that it is credible and reliable?  Papakosmas v The Queen (1999) 196 CLR 297 (per McHugh J) o Assessing the relevance of evidence does not involve considering any prejudicial effect of that evidence o However, assessment of probative value “would necessarily involve considerations of reliability” o So a piece of evidence that would, if accepted on the face of it, be highly relevant to the facts in issue, might yet be considered to be of very low 7 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

probative value if the witness from whom the evidence was adduced lacked  Adam v The Queen [2001] HCA 57 o Gaudron J:  Omission of the words if it were accepted is of no significance 

Probative value of a piece of evidence can only be assessed on the assumption that it will be accepted

 Trial judge should not take into account issues of credibility or matters of general unreliability when assessing probative value.  Followed in R v Shamouil [2006] NSWCCA 112

8 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

 Dupas v The Queen [2012] VSCA 328 o The reliability (or lack thereof) of evidence can be taken into account in assessing probative value for the purposes of the exclusionary discretions.  R v XY [2013] NSWCCA 121 o Followed R v Shamouil [2006] NSWCCA 112 o Issues of reliability and credibility are generally irrelevant to an assessment of probative value, except in the case where the ‘issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of probability of the existence of the fact in issue’ 9 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

 IMM v The Queen [2016] HCA 14 o In assessing relevance, the words of s.55 —‘if accepted’—make it clear that the focus is on the capacity of the evidence to ‘rationally affect assessment of the probability of the existence of a fact in issue. o This requires the evidence ‘to be taken at its highest’, i.e. a trial judge is to assume that the evidence will be accepted by the jury and is not to take into account issues of reliability o Though the words ‘if accepted’ do not appear in the definition of probative value, assessment of the probative value of a piece of evidence involves the same basic inquiry and is not altered by the further requirement to consider the extent to which it capable of affecting rational assessment of the existence of a fact in issue. 10 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

“unfairly prejudicial”  There is no definition of unfair prejudice in the Evidence Act.  Generally, evidence is prejudicial when there is a risk that it might be given more weight than it rationally warrants, or when it might cause the tribunal of fact to behave in an emotive, rather than rational, manner.  ALRC: By risk of unfair prejudice is meant the danger that the fact-fnder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie, on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-fnder to base his decision on something other than the established propositions in the case. 11 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.  R v BD (1997) 94 A Crim R 131 per Hunt CJ: The prejudice to which each of the sections [sections 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.  Papakosmas v The Queen (1999) 196 CLR 297 per McHugh J: Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. 12 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

Examples of evidence that may be unfairly prejudicial:  R v XY [2013] NSWCCA 121 o Evidence of the promiscuity and sexual interest in girls of high school age of the accused who was facing a charge of sexually abusing a minor was excluded due to the danger that the jury may give the evidence undue weight or rely on “tendency reasoning” and find that the accused must have committed the offence.  Patel v The Queen [2012] HCA 29 o Evidence of a surgeon’s incompetence was excluded when it transpired that the real issue in the case was whether the surgeon had carried out unnecessary surgery. 13 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

 R v Tai [2016] NSWCCA 207 o Victim of robbery had provided statements to the police o Subsequently victim died prior to trial. o Statements admissible under an exception to the hearsay rule (s.65). o However, they were excluded under s.135(a) due to police conduct that had deprived the accused of an opportunity to challenge the credibility and reliability of the complainant’s account:  The police had failed to obtain statements from a witness who had seen the robber and told the victim that she would be able to identify him  The police failed to undertake inquiries to establish whether there were any other witnesses to the events. 14 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

o As a result, the probative value of the deceased’s statement was substantially outweighed by the danger that it would be unfairly prejudicial to the accused.  Evidence of the accused person’s involvement in previous criminality for which the accused was never punished: o Danger of such evidence making a jury more likely to convict, as a way of punishing the accused for alleged crimes that he or she would otherwise get away with, regardless of whether the prosecution has actually proved the present charge against the accused.

15 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

2nd ground: The probative value of the evidence is substantially outweighed by the danger that the evidence might be misleading or confusing.  Hughes Aircraft Systems International v Airservices Australia (No 3) [1997] 80 FCR 276, 283 o It was found that the defendant had committed breaches of a tender process contract with the plaintiff and engaged in conduct contravening s.52 of the Trade Practices Act 1974 (Cth). o The issue was whether these breaches had caused the applicant to lose the opportunity to win the contract that was the subject of the tender process. 16 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

o The defendant sought to lead evidence from members of its predecessor board what their decision on the award of the contract might have been, if the breaches of contract or Trade Practices Act contraventions had not occurred. o Court held that the defendant had asked the board members to express their views on a contrived, inadequate and incomplete information base, which distorted the original decision-making process.  Court excluded the evidence of the board members as it had “a significant potential to mislead because its probative value is itself affected by the lack of the very scrutiny to which it would have been exposed if the decision was the real—and not a hypothetical—one”.

17 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

3rd ground: The probative value of the evidence is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.  Matthews v SPI Electricity Pty Ltd (No 21) [2013] VSCA 219 the Black Saturday litigation) o The plaintiffs sought to tender eighteen audit reports from eleven power line inspectors to show that there was a systemic problem with the training of the inspectors. o The inspectors had been employed by a company that the defendant had engaged to inspect the power line on which the fire had started but none of them had ever inspected the power lines in question. 18 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

o The court acknowledged that the reports might be relevant for the purpose of showing the problem with the training but was concerned that admission of the reports “has the potential to open up a raft of side issues which are [remote] from the real controversy”. o E.g. the court was concerned that the defendant seek to produce hundreds of audits from other inspectors to rebut the suggestion that there was such systemic problem; weeks of the trial could then be spent on analysing documents or oral evidence relating to inspectors who have nothing to do with the central issues in the case. o The court said that such an exercise would be totally out of proportion to the probative value of the reports and excluded them as they had “the potential to waste an enormous amount of time on a point which goes to the heart of the periphery of the issues in this trial”. 19 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

4th ground: The probative value of the evidence is substantially outweighed by the danger that the evidence might unnecessarily demean the deceased in a criminal proceeding for a homicide offence.  Amendment inserted in 2014.  Explanatory memorandum to legislative amendment: o To deal with ‘victim blaming’ and the attendant distress that might be caused to the family of the deceased. o Not intended to prevent the reception of evidence “where there is a legitimate forensic reason” for admitting it. o No explanation provided as to “legitimate forensic reason”. 20 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

In considering whether there may be danger of unfair prejudice, the court may consider the extent to which such danger may be mitigated to minimise the prejudice to the accused, e.g. by giving appropriate directions to the jury; or by editing the evidence to be admitted. The court has discretion to limit the use of evidence that has been admitted. s.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. 21 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

 s.136 operates in circumstances where evidence is relevant for more than one purpose  trial judge would be required to direct jury that the evidence could be used for the purpose for which it was relevant, but not for the other purpose for which its use might be prejudicial, or misleading or confusing  e.g. evidence that is relevant and admissible for a non-hearsay or nonopinion purpose is rendered admissible for a hearsay or opinion purpose by s.60 or s.77 (exception to opinion evidence)  In certain circumstances, use of the evidence for the hearsay or opinion purpose may create a danger of unfair prejudice. A party might be unfairly prejudiced by inability to test, through cross-examination, the maker of a previous representation, or the foundation for an otherwise inadmissible opinion. 22 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

Example:  Report of a person’s medical history may be admissible for proving the basis of an expert medical opinion.  Once the medical history is admitted for this purpose, it is open to be used to prove the facts contained in the history.  The use of the medical history in this other way is subject to the court’s discretion under s.136.  If by allowing the medical history, originally admitted to prove the basis of the expert opinion, to be used to prove the facts contained in it, it may be either unfairly prejudicial to a party or misleading or confusing, the court may restrict the use of the medical history to its original purpose and disallow it from being used in the other way. 23 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

 e.g. the medical history may tend to put a party in an unfavourable light if allowed to be used to prove the facts stated in it. If the court finds that it may be unfairly prejudicial to that party, the court may not allow the medical history to be used in that manner. Example 2:  The discretion to limit use of evidence may also be exercised in favour of the prosecution.  Johnston v The Queen [2012] VSCA 271 o The accused was charged with several counts of robbery, burglary and theft, all committed against the same person on 20 and 24 December 2008. 24 | These notes are distilled from the textbook, Uniform Evidence, by Gans, Palmer and Roberts (2019) 3rd Edition

LLW4007: Topic 8: Excluding Evidence: Powers & Discretions

o In his record of interview, the accused told police that he went back to the complainant’s house on 24 December becaus...