Judicial discretion to exclude evidence

Judicial discretion to exclude evidence

1. exclusion of admissions

   • crimes act
     • 464J(a) right to silence
       • 464A(3) caution
         • 139 evidence act caution
     • 464C rights
     • Taping VIC= 464H CTH=23V
   • evidence act
     • 84 voluntary?
     • 85 reliable?
       • concerns about reliability involve truthfulness of an admission
         • may be to protect others
         • trying to impress others: tolfiau
         • believes no chance of fair trial and better to make a deal
     • 90 fairness
       • charter of human rights s24(1) person charged with a criminal offence has the right to a fair and public hearing
       • lack of legal reg: dietreich
       • lack of interpretor
       • adverse pre-trial publicity
       • biased judge
       • wrongful admission on evidence
       • court may refuse to admit evidence if
         • a) the evidence is adduced by the prosecution and
           • b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence
     • 138- improperly obtained
     • 135 general discretion to exclude
     • 137 unfair preduicial effect exceeds probative value?

2. hearsay

   • rule against hearsay does not apply to admissions s81(1) only applys to first hand hearsay s82

3. breach of informing

   • failure to caution
     • s139
     • s138
   • failure to inform interpretor
     • 138 + 138(3)
     • lack of voluntariness: 84
     • lack of fairness s80

4. voir dire

   • trial within a trial
     • admissability of evidence
     • use of evidence against the person
     • competence and compellability of a witness

5. lack of voluntariness

   • involuntary omission/confession must be excluded
   • confession must be free choice: McDermott v The King
   • prosecution has onus of proving on BOP voluntariness 464J(b) CA
   • s84 evidence act
     • elements
       • 84(2): 1 D must raise issue of voluntary confession
       • 2: prosecution must then satisfy court that d was not influenced (causal connection) by violent, oppresive, inhuman, or degrading conduct or threat of such conduct