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1A. Judicial Discretion

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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 old—admission 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 side—focus 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; O’Leary 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 driving—breath test not per rules—BAC 0.19  admitted based on consideration of policy)  Policy—those 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 evidence—whether 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 PPRA—long title—to restrain police → exclude  Where no emergency & easy to obtain a warrant—exclude 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 Andrew Trotter LWB432 Evidence Bunning v Cross (1978) 141 CLR 54  Accused was charged with drink driving under relevant laws in SA  E
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