Law Notes Litigation 2 - Evidence Law Notes
These are comprehensive yet succinct notes. They set out the relevant legal principles, and material facts from a range of cases in order to demonstrate how those legal principles have been applied.
At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address. I also use tables where p...
The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation 2 - Evidence Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Readings
Introduction ss 135-137 16.1 – 16.5; SM ch 16 Evans 16.6-8 16.14-16.16 [120-130] recent cases SM 16.5A, 16.5B, 16.14A |
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3 Discretionary and Mandatory Exclusions: ss 135-137 1
Checklist: 1
Discretionary exclusion: s 135? – applies to both civil + criminal 2
S 135(a) unfair prejudice 2
S 135(b) misleading or confusing 3
S 135(c) ‘undue waste of time’: Dyldam; Jacara 3
Mandatory exclusion: s 137 – only applies to criminal 4
Limiting the use of the evidence: s 136? 6
Note other exclusions (learnt in Lit 1): 7
Notes on fair trial - factors that could weigh in favour of excluding 8
Appendix 10
Prelim: consider relevance (S56) and if any other exclusions. This evidence could be excluded under s 135 or 137, or its use could be limited under s 136.
Could the evidence be excluded under s 135?
Should the evidence be excluded under s 137, mandatorily?
Should use be limited under s 136: (a) unfairly prejudicial or (b) misleading/confusing.? |
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Intro to s 135 | Rule: A trial judge may exclude evidence that is sufficiently probative to satisfy s 55 but is substantially outweighed by the danger that the evidence might:
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Process for all s 135 issues | The weighing process: Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial: Pfennig Three step process (James Hardie; Shamouil)
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S135(a) ‘unfair prejudice’: Just because the evidence makes it more likely the D will be convicted does not mean it is unfairly prejudicial (Festa; Papakosmas) – the prejudice is unfair when there is a real risk that the evidence will be misused by the jury in some unfair way (R v BD; Papakosmas; Festa) that goes beyond the probative value it may properly be given (Festa).
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Buy the full version of these notes or essay plans and more in our Litigation 2 - Evidence Law Notes.
These are comprehensive yet succinct notes. They set out the relevant legal principles, and material facts from a range of cases in order to demonstrate how those legal principles have been applied.
At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address. I also use tables where p...
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