#8534 - Discretionary And Mandatory Exclusions - Litigation 2 - Evidence Law

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.

• Unfair prejudice has the same meaning in each of these sections: R v BD.

Could the evidence be excluded under s 135?

• Assess its probative value. Is this substantially outweighed by danger that evidence might be:

• (a) unfairly prejudicial to party?

• (b) misleading/confusing?

• (c) cause or result in an undue waste of time?

• What directions to give? Or its use limited by s 136?

Should the evidence be excluded under s 137, mandatorily?

• The probative value, as discussed above, is____.

• The danger of unfair prejudice to the D is_____.

• Directions that could be given to reduce this are _____., or use limited by s136?

• Overall, it seems ____.

Should use be limited under s 136:

(a) unfairly prejudicial or (b) misleading/confusing.?

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:

1. be unfairly prejudicial to a party: s 135(a)

2. be misleading or confusing: s 135(b)

3. cause or result in undue waste of time: s 135(c)

• Burden: Party who wants discretion exercised bears burden of proof: see notes on proof

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).

• Over-react in an illogical way?: Jury may use evidence to make a decision on an improper, emotional, basis. Evidence may appeal to fact-finders sympathies, arouse a sense of horror, provokes an instinct to punish, triggers other human action: Papakosmas

• Give more weight to particular piece of evidence than it deserves?: Yates; R v Em

• Rely on it on a basis logically unconnected to the issues in the case: Taylor

• Considerations: judge should have regard to what warnings or directions might be given to the jury that such prejudice does not arise: R v Em (on s 137)

• Example of what isn’t unfair prejudice:

  1. R v Em – that police secretly recorded accused making admissions of guilt – the only prejudicial effect was to prove that the accused committed the offences.

• Procedural considerations included (Dyldam): Being unable to XE on a vital issue may create significant prejudice (but did not in): Ordukaya. Here the D was medically unfit to attend court, P couldn’t test D’s evidence in XE.

• Written transcripts of show allegedly defamatory: Reading v ABC – written transcript of a program allegedly defamatory, meant that there was a real risk the jury will be distracted to prejudice of both parties and thus administration of justice by the temptation unduly to concentrate on a written record where there is vido evidence

• Hypothetical decision-making: Eg Hughes Aircraft Systems – issue of loss of opportunity from breaches of contract – evidence about hypothetical decision-making, upon 14 assumptions, was contrived, excluded under s 135(b).

• Relationship evidence / tendency evidence: Toki. Evidence of violent relationship between accused and deceased, inadmissible for tendency purpose for lacking significant probative value under s 97 and 101. If admitted for this, real risk of confusion arising on part of jury as to purpose for which any particular part of the evidence was admitted and the use which the jury could make of it. If admitted as relationship evidence – the directions to distinguish it from tendency evidence, ‘would overly complicate the matter and lead to the possibility that the jury would misuse some of the evidence’.

S 135(c) ‘undue waste of time’: To let the judge avoid an inappropriate expansion of the trial caused tendering of evidence of slight/peripheral relevance to facts in issue: Dyldam

1. Take into account appropriateness of an adjournment: Dyldam

2. Extent to which costs order might reduce the element of prejudice: Dyldam

3. Can take into account the fact that there is other ev. to prove same matter: Taylor

• In Dyldam the trial judge correctly exercised discretion under s 135 to exclude a journal produced by appellant on penultimate day of trial and which should have been produced 12 months earlier. Either the plaintiff had to either accept the interpretation of the journal (without an opportunity to test it further), or submit to a lengthy adjournment. The first would be unfairly prejudicial. But with the second option – substantial delay to conclusion of case that should not have occurred, but did occur because of flagrant misconduct by one party, is a waste of time within s 135(c).

• In Jacara s 135(c) excludeed similar-fact evidence of misrepresentations concerning shopping centre leases. ‘Cobweb of subsidiary factual disputes’ would have been generated. Three justifications: (1) extended lit would have cost $200k (2) disparities between accounts and evidence unlikely to be of countervailing benefit (3) five of deponents biased against R. reduced the probative value of the evidence.

Rule: 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.

• ‘Real risk’ notwithstanding directions: There must be a real risk that the evidence will be misused by the jury in some way and that risk will exist notwithstanding the proper directions which it should be assumed the Court will give: Shamouil

• Burden: Onus is on the accused to persuade the trial judge to exclude the evidence under 137: Polkinghorne; Gilmour see notes on proof

• No discretion: although cast in terms of weighing does not in truth confer a discretion: Clark; R v GK

Process:

1. Determine what the probative value is (on the basis that the evidence will be accepted by the tribunal of fact, without having reference to issues of credibility or reliability – as probative value means the extent to which the evidence could rationally affect the assessment of the existence of the facts in issue): Shamouil; Mundine). However – if it is possible for the court to determine that it would not be open to (as opposed to just unlikely for) the jury to conclude that the evidence could rationally affect the assessment of the probability of the facts in issue – then those considerations would be relevant: Shamouil

2. Determine what the unfair prejudice is: the evidence will be misused or there is unfair prejudice from procedure? R v Cook

3. Think about what...