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Judicial Discretion = discretion to exclude otherwise admissible evidence (NOT to include otherwise excluded evidence) determined on Voir Dire:

: Demirok Fairness discretion: Hasler (1987) Thomas J Where evidence of slight probative value, then it may be excluded if it is unfairly prejudicial to the defence: Hasler (1987) (man raped 13 yr oldadmission to 11 yr old sister while attempting to seduce her high probative value included on fairness discretion) [ also Fresh Complaint Doctrine\C&C] High/medium probative value admit (no room to consider prejudice) Slight probative value admit unless substantially prejudicial o All evidence is prejudicial to the other sidefocus on unfair prejudice (that will be misused by tribunal of fact) No probative value exclude Previous convictions & other discreditable conduct (alcoholism) highly probative: R v Jones; OLeary v The King; R v Witham

Statute: s130 QEA Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to admit that evidence. Public policy discretion: Bunning v Cross (1978) Bunning v Cross (1978) (drink drivingbreath test not per rulesBAC 0.19 admitted based on consideration of policy) Policythose who enforce the law should themselves abide by it. Competing public policy issues The interests or the need in the community in bringing felons to justice; The courts refusal to condone improper behaviour by law enforcement Factors (non-exhaustive) Conduct by police a deliberate disregard for law or a mistake Cogency of evidencewhether perishable (or vital or evanescent) Ease of complying with law to get evidence o Genuine response to pressing circumstances (eg imminent destruction of evidence) go to jury o Could & should have complied with the law to get the evidence exclude Seriousness of offence o Minor charge include o Serious charge exclude Examination of legislation o If in breach of PPRAlong titleto restrain police exclude Where no emergency & easy to obtain a warrantexclude on fairness discretion as a reckless disregard for the law: R v Day (2008) Undercover police officers w tape strapped to chest: Tolifau (fairness & policy) Vulnerable / arrest for questioning / confession: Foster Undercover, circumventing right to silence: Swaffield

Bunning v Cross (1978) 141 CLR 54 Accused was charged with drink driving under relevant laws in SA Evidence which was available to convict the defendant was a compulsory breath test given by the defendant The SA legislation which allowed the police to compulsory acquire a breath test had a number of steps which had to be undertaken before the breath specimen could be demanded Argument was that this evidence had been obtained by improper behaviour on part of the police, in that there was improper behaviour by the police in not complying with the steps that the legislation prescribed before a breath specimen could be obtained Further, the failure weighed above the need to convict the defendant of driving over the limit HELD: HC Firstly, a court is only concerned with highly probative and cogent evidence Justices Stephen and Aitkin described the public policy discretion as weighing the desirable goal of bring to conviction wrongdoers against the undesirable effect of curial approval or even encouragement being given to unlawful conduct by those whose task it is to enforce the law These factors should be considered when considering which of the above two policies win out if the former wins out the evidence is allowed to go to the tribunal of fact, if the later, then the evidence, no matter how cogent it is, is kept from the tribunal of fact Look at the gravity of the charges against the accused HIGH COURT HELD that breathalyzer legislation created serious offences in stopping people whilst under the influence OUTCOME: Evidence was allowed to go to the tribunal of fact.

Statute: CEA Fairness Discretion General discretion to exclude where probative value is outweighed by unfair prejudice: s135 CEA (civil and crim trials) o Judge must refuse to admit evidence where probative value is outweighed by unfair prejudice: s137 CEA (criminal trials only) Court may limit use of evidence where unfairly prejudicial: s136 CEA (civil and crim trials) Public Policy Discretion: s138 CEA Where evidence has been unlawfully or improperly obtaineddesirability of admitting the evidence must outweigh the desirability of excluding it Non exhaustive list of matters to consider in s3 (similar to those matters in Bunning v Cross)

Cogency of evidencewhether perishable (or vital or evanescent) If genuine mistake cogency can be taken into account o Strong evidence should go to jury o Not very cogent excluded If deliberate should not consider cogency unless vital to Crown case o Vital got to jury o Cogent but not vital excluded

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