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Discretionary + Mandatory Exclusion
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 (c) cause or result in undue waste of time.
1. Assess probative value (without reference to reliability or credibility: Shamouil.
2. Substantially outweighed by: a. 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 overreact 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 b. Misleading /confusing? (eg tendency evidence: Toki; or transcripts where there is recorded evidence: Reading v ABC; or hypotheticals: Huges Aircraft Systems) c. 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.
3. What directions could be given to ameliorate the prejudice? Shamouil
4. 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.
1. Assess probative value without reference to credibility or reliability: Shamouil
2. 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.
3. Determine what directions could be given to alleviate the dangers: Em; Shamouil
4. 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: 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.
1. Consider: is there a danger that a particular use of the evidence might: a. Be unfairly prejudicial to a party? (see above eg of unfair prejudice) b. Be misleading or confusing?
2. 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)
3. Examples: Papakosmas and Graham (s 136 not enlivened: Complaint evidence relevant to credibility and whether sexual assault took place. a. In: O'Leary, Serratore, Adam Evidence admitted for background, relationship or state of mind and was not to be used for propensity reasoning. b. 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.
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