#8541 - Ss135 137 - Litigation 2

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) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

Assess probative value (without reference to reliability or credibility: Shamouil.
Substantially outweighed by:
1. Unfair prejudice (not just that more likely to convict, That jury would misuse evidence in some unfair way: Festa; Papakosmas; or there is procedural unfairness from being unable to XE on a vital issue: Kennedy): eg. jury would over-react in an illogical or emotional way; Papakosmas; Festa, give extra weight to something that it doesn’t deserve: Yates. ‘Real’ risk, more than mere possibility: Lisoff; GK
2. Misleading /confusing? (eg tendency evidence: Toki; or transcripts where there is recorded evidence: Reading v ABC; or hypotheticals: Huges Aircraft Systems)
3. Cause undue waste of time? (taking into account appropriateness of adjournment, a costs order, and whether there is other evidence to prove the matter: Dyldam (here doc should have been adduced earlier). Or when collateral issues time and resource expensive to investigate because of conflicting and biased reports: Jacara.
What directions could be given to ameliorate the prejudice? Shamouil
Is the probative value substantially outweighed by one or more of the dangers in s 135, taking into account what directions could be given? Shamouil; Em

137 Exclusion of 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.

Assess probative value without reference to credibility or reliability: Shamouil
Determine what the unfair prejudice to the D is: eg that the evidence will be misused (by overreacting in an emotional way or putting too much weight on something Festa, or unfair prejudice from procedure to the D?: Cook; Kennedy (Eg no unfair prejudice in Em where the only effect was to prove that he had committed the offences.). see below cases for (a) identification evidence and (b) other.
Determine what directions could be given to alleviate the dangers: Em; Shamouil
Taking into account directions, does danger of unfair prej to D outweigh the probative value? S 137 (Shamouil)

S 136 General discretion to limit use of evidence:

Consider: is there a danger that a particular use of the evidence might:
1. Be unfairly prejudicial to a party? (see above eg of unfair prejudice)
2. Be misleading or confusing?
Law: s 136 should not be applied to defeat the intended role of an exception to an exclusionary rule (eg ss 76 or 60) (Papakosmas) but a stronger case for limitation is made out when evidence is admitted under these sections: Roach v Page (Sperling J).

s 77 – opinion rule doesn’t apply to evidence of an opinion admitted because it is relevant for a purpose other than proof of existence of fact about the existence of which the opinion was expressed.
S 60 – hearsay rule doesn’t apply to evidence of a previous representation admitted because it is relevant for a purpose other than proof of an asserted fact: s 60(1)

Examples: Papakosmas and Graham (s 136 not enlivened: Complaint evidence relevant to credibility and whether sexual assault took place.
1. In: O’Leary, Serratore, Adam Evidence admitted for background, relationship or state of mind and was not to be used for propensity reasoning.
2. In OGD - led evidence of bad character to rebut. S 95 required trial judge to direct jury that it couldn’t use this evidence to reason he had a tendency to sexually assault young boys.

Note specific types of s 137 unfair prejudice cases:

(1) in court demonstration: Evans – Kirby J would have excluded evidence when it required the D to sit with clothing similar to criminals(eg balaclava).
(2) ID evidence:
1. in court: Festa (ID as D was leaving court–one else of her female age height and appearance in vicinity of court room at time): Identification evidence was admissible subject to an appropriate judicial warning. Indicates: (1) acceptance that judicial warning can sufficiently warn jurors against misleading even weak identification evidence and (2) willingness to leave without significant censure exceptionally poor police investigative procedures.
2. Identifications when the police know that the suspect is the accused: Carusi; Alexander – although no rule excluding use of photographs in relation to person who is under suspicion but has not been taken into custody – still strong ground for exclusion. When the detection process ends and the evidentiary process
  1. “This is a strong ground for excluding from trial all evidence of identification by a witness who has been involved in that photo-identification. Photo-identification then just possesses a second-best mode of identification, particularly prone to error and also productive of those well-recognised consequences so likely to be prejudicial to an accused. Will be in most cases where more reliable mode of identification such as identification parade available to exclude evidence the identification testimony of witness whose testimony has been infected by contact with photo-identification.
  2. How to identify when the detection process ends? When police know that the accused is the person who is suspected R v Carusi: the detection process ends when the police know that the accused is the person who is suspected.
    1. Eg – when identification witness gave general description of culprit which fitted Carusi but only small amount of indirect evidence to link him to crime without more precise identification. Appropriate to show witness photographs at this stage to make a more precise identification.
3. Photo ID - admitted: Mundine (not a matter for judge to exclude on basis of inherent unreliability of photo ID, images didn’t match description of V, weaknesses in cross-racial IDing); - Admitted: Leroy and Graham- (1) police had failed to obtain descriptions of offenders before witnesses were shown photographs. Early descriptions are highly important for testing of identifications. Despite this: judge held from case laws that this failure alone doesn’t warrant exclusion of evidence. Judge had directed jury and remedied potential unfairness. (2) Leroy distinctive and promoinent in photos? But no suggested criminality. (3) Graham said he was only aborigine and had goatee beard. But 2 other people in photos had dark complex and goatee beard hadn’t been referred to as an identifying feature by Ws prior to trial nor in in it).
4. Identification parades – if no-one else in line-up of similar appearance could be unfair: (Blick; Fisher; cf R v To): in Blick – where only one person had a goatee, the prejudice remained high while probative value low, excluded. In R v Fisher - no men had similar appearance to D who was aboriginal with shoulder-length hair. In R v To – Vietnamese man in line-up with seven Korean men. Korean witness said that she looked at a couple Koreans, then saw D + didn’t look at other nationalities.
5. Photo
- Courts recognize it is potentially unfair to hold an identification parade where a witness has been previously shown a photograph of the accused, creating the potential danger of a displacement: Alexander v R.
- Displacement effect can occur where witness has been shown photographs of the accused’s brother who bore a strong resemblance to the accused: R v McKellar
- Unfair to hold an identification parade where witness has identified offender already: Carusi
- Where sufficient numbers of people with similar appearance cannot be present despite reasonable efforts: R v Tahere

Tendency evidence: eg in R v Dann - relationship evidence should have been excluded because distinction between tendency and relationship too difficult for jury to grasp.

S 137 cases:

Examples of cases:

Secret recording of admissions of guilt: Em only prejudicial effect was to prove that D committed the offences, not excluded by s 137
D had a demonstration where he was dressed in a balaclava and overalls (found at his house) and sunglasses (not in evidence), asked to walk and talk to jury: Evans. Heydon (Crennan J agreeing) would not have excluded the evidence under s 137 – as the events appeared to have generated evidence favourable to the accused in one respect, and defence counsel contended to the jury that they did so in more than one respect, and so far as they were prejudicial the prejudice lay in their probative value. However Kirby J held it should have been excluded under s 137 as D was forced to sit in the jury’s presence in a garb often associated with armed robberies inescapably similar to the appearance of the offender shown on the video film and stills and necessarily looking sinister and criminal-like.
evidence that D’s face ‘had a look of sexual gratification’ and child complainant had a ‘glazed look’: R v Harvey – was admitted as relevant of guilty passion (explaining the nature of the relationship). Excluded under s 101, and as the prejudicial effect of the evidence was high and its probative value was slight, s 137 required the evidence be excluded.
Evidence that accused had gone to police academy and had knowledge of investigations –...

#8541 - Ss135 137 - Litigation 2 - Evidence Law

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