Nick Dowse Judicial Discretion
Judicial Discretion – Structure of Answer
1. “The issue here is whether Justice X should exercise judicial discretion to exclude [piece of
a. Even if a piece of evidence is relevant and admissible, a judge may use his/her discretion
to exclude it.
b. In criminal cases, even though an item of evidence may be both relevant and admissible,
the judge has discretion to exclude material that would otherwise be admissible. Judge has
no discretion to include otherwise inadmissible evidence (eg. if excluded by hearsay and
no inclusionary rule to bring back in then no discretion to include).
2. Two separate heads of judicial discretion to exclude evidence must be considered – one based on
fairness to the defendant and the other based on broader public policy grounds.
a. Fairness Discretion
i. In criminal trials, judge/magistrate has responsibility to ensure the accused gets a
fair trial. There is discretion to exclude the evidence that is unfair at both the
common law and statute law (s 130 QEA).
ii. Therefore, they can exclude otherwise admissible evidence when it operates unfairly
to the accused, in the sense that it places him/her at risk of being improperly
iii. The relevant test is whether the prejudicial effect of the evidence outweighs (or
substantially outweighs) whatever probative value the evidence may have (Hasler)
iv. To work this out, need to address the following questions:
1. Is the evidence of slight probative value?
a. If yes, only slight probative value…
i. Would admitting the evidence be substantially prejudicial to the
1. If yes, exclude the evidence.
a. The admission of the evidence is substantially
prejudicial because it shows discreditable conduct
other than those facts which directly tend to prove
the offence itself [eg. presenting evidence of
accused shooting at someone a year ago when
accused of murdering a person using a gun;
evidence of a horrible criminal history; mere
evidence of a criminal disposition]. Therefore
[judge] should exclude evidence.
b. In other cases previous convictions and other
discreditable conduct (like excessive drinking etc)
were admitted because they were highly probative
(R v Jones; O’Leary v The King, R v Witham).
2. If no, admit the evidence.
a. This evidence will not result in a substantial
injustice or prejudice because [apply eg. prejudice
cannot refer to the damage to the accused’s case
through direct proof of the offence: Hasler]
therefore [judge] should admit the evidence.
b. If no, it is more than that, it has medium or high probative value…
i. Here the evidence is [confession to murder, admissions to this
crime and other crimes like in Hasler] and is therefore of
[high/medium] probative value. As the evidence is so weighty,
there is no need to look at the second issue of prejudicial effect:
Hasler. Therefore [judge] should admit the evidence.
c. If no, it is no probative value…
Page 1 of 3 Nick Dowse Judicial Discretion
i. Here the evidence has no probative value because [it is not
helpful in determining the main facts in issue eg. horrible
criminal history, use of a gun to shoot a different person a year
ago] and therefore judge should exclude the evidence.
v. NB: there is said to be no fairness discretion in civil trials, however it is suggested
that a court will not allow a party the benefit of the fruits of their improper conduct,
and would reject the evidence (Mazinski v Bakka).
b. Public Policy Discretion
i. There is discretion to exclude the evidence that is obtained illegally at both the
common law and statute law (s 130 QEA).
ii. There is a judicial discretion in criminal trials to exclude evidence obtained by illegal
means based on the public policy grounds that those who enforce the law should
abide by it. The issue not fairness, but significant misbehaviour in way evidence is
gathered (police or prosecution obtain evidence illegally or improperly e.g. searching
without a warrant, unlawful telephone tap).
iii. There are two competing considerations: