What is the Unfairness Discretion?
Evidence can be excluded if unfair TO THE ACCUSED to admit it.
Usually used to exclude confessions, that is evidence obtained as a result of questioning. Often where there has been some sort of deception or trickery on the police behalf.
Usually used to exclude confessions, that is evidence obtained as a result of questioning. Often where there has been some sort of deception or trickery on the police behalf.
Statutory DiscretionSection 130 Evidence Act:
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 the person charged to admit that evidence. |
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Common Law
Evidence may be unfair where it is either (Swaffield (1998) 192 CLR 159):
* Unreliable; or
* Obtained in breach of a procedural right (Foster (1993) 113 ALR 1) - eg. Right to Liberty, Right to Silence
* Unreliable; or
* Obtained in breach of a procedural right (Foster (1993) 113 ALR 1) - eg. Right to Liberty, Right to Silence
UnreliableTest: Is there a risk that the evidence obtained will result in a wrongful conviction? What is the weight of that risk?
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Obtained in Breach of a Procedural RightTest: Requires a balancing of the gravity of the crime and the seriousness of the police misconduct, looking at the impact on the accused and the culpability of the officer
Is the evidence "bought at a price which is unacceptable, having regard to contemporary community standards and includes consideration of the forensic disadvantage which might be occasioned by the admission of improperly obtained confessional statements" R v Batchelor [2003] QCA 246 [12] |