LAW20009 Week 2: Week 2 Collab Notes

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# Table of Contents

- Week 2 – Judicial Discretion to Exclude Evidence
    - Overview
    - Key Concepts and Legal Doctrines
        - 1. Five-Step Analytical Framework for Evidence Admissibility
        - 2. Roles of Judge and Jury
        - 3. Section 135 – General Discretion to Exclude
        - 4. Section 137 – Exclusion in Criminal Proceedings
        - 5. Section 136 – Limiting Directions
        - 6. Section 138 – Illegally or Improperly Obtained Evidence
    - IRAC Case Summaries
        - Case: R v Shamouil [2006] NSWCCA 112
        - Case: R v Dupas (2010) 28 VR 188
    - Quizzes and Worked Examples
        - Problem: “Anthony’s Drive-By Shooting”
    - Criminal Procedure: Voir Dire
        - Voir Dire – <Badge text="s 189" variant="tip" />
    - Practical Exam and Study Tips
    - Supplementary Reading and References
    - Open Questions or Clarifications

Week 2 – Judicial Discretion to Exclude Evidence

Subject: LAW20009 – Evidence Law Lecturer: Alana Ray Date: Week 2 (specific date not provided) Materials: Transcript + Slides

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Overview

Topic Summary This lecture introduces the discretionary basis upon which courts may exclude otherwise admissible evidence under the *Evidence Act 2008 *(Vic)**. The four discretionary provisions—s to 138—are embedded in a five-step admissibility framework. The lecture also clarifies the distinction between legal and factual questions (judge vs jury) and introduces procedural tools like voir dire. These principles form the foundation for later topics including hearsay, opinion, and character evidence.

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Key Concepts and Legal Doctrines

1. Five-Step Analytical Framework for Evidence Admissibility

Definition

A sequential method for assessing admissibility and ensuring no critical evidentiary issue is overlooked.

Steps

1. Privilege or Immunity – e.g., legal professional privilege
2. Relevance – : tendency to make fact more or less probable
3. Exclusionary Rules – hearsay, opinion, character
4. Discretionary Exclusion – s–138
5. Weight/Reliability – considered by jury post-admission

Lecturer Notes

• Evidence must pass each prior step before the next is considered
• If evidence fails at step 2 (relevance), court need not consider discretionary exclusions
• Step 5 involves judicial instructions to the jury regarding limitations or warnings on use

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2. Roles of Judge and Jury

Definition

Distinguishes functions of judge (law) and jury (fact) in trials.

Application

• Judge rules on admissibility, procedural fairness, discretion
• Jury evaluates credibility, reliability, weight
• In judge-alone trials, judicial reasoning must maintain conceptual separation

Authority

• Jury Directions Act 2015 (Vic) – governs permissible judicial instructions

Lecturer Notes

• Judge cannot direct jury what to conclude; may only guide how to reason
• Voir dire ensures prejudicial material is kept from jury unless admitted

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3. Section 135 – General Discretion to Exclude

Text of Provision Court may refuse to admit evidence if its probative value is substantially outweighed by a danger that the evidence might: (a) be unfairly prejudicial to a party (b) be misleading or confusing (c) cause or result in undue waste of time

Ratio (from Lecture) A high threshold applies. Damage to a case ≠ unfair prejudice. Must show irrational or improper influence on the fact-finder’s reasoning.

Key Cases & Authorities

• R v Shamouil [2006] NSWCCA 112 ::: > Courts must assess probative value “at its highest”, disregarding reliability or credibility issues – Ratio: Reliability goes to weight, not admissibility

Examples from Lecturer

• Gruesome photographs where cause of death undisputed
• Scientific evidence beyond jury comprehension
• Marginally relevant evidence that consumes disproportionate time

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4. Section 137 – Exclusion in Criminal Proceedings

Text of Provision In a criminal proceeding, the court must refuse to admit prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Distinctions from

• Mandatory (“must”)
• Lower threshold—no “substantially” requirement
• Applies only to prosecution evidence in criminal trials

Policy Basis

• Protects presumption of innocence
• Upholds burden of proof (beyond reasonable doubt)
• Reflects principle: better to acquit the guilty than convict the innocent

Authority

• (2010) 28 VR 188

  Victorian courts now apply the Shamouil “at its highest” rule to probative value under – Ratio: Trial judges must assume jury will accept the evidence, assess what it proves, not its reliability

Lecturer Examples

• Prior convictions as motive: prejudicial if they inflame juror emotions
• Poor quality ID evidence without proper basis

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5. Section 136 – Limiting Directions

Text of Provision Court may direct that evidence only be used for a limited purpose, if otherwise there is a danger it may be unfairly prejudicial or misleading.

Purpose

• Alternative to total exclusion
• Allows judge to “quarantine” prejudicial effect via direction
• Empowers jury to distinguish permitted vs impermissible uses

Examples from Lecture

• Prior inconsistent statements: admissible for credibility, not truth
• Computer records: admissible to show user activity, not content reliability
• Sharon’s driving ban used to suggest accused drove, but not as character inference

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6. Section 138 – Illegally or Improperly Obtained Evidence

Text of Provision Evidence obtained improperly or in contravention of Australian law is inadmissible unless the desirability of admitting it outweighs the undesirability.

Two-Stage Process

1. Moving party must establish illegality or impropriety
2. Court must weigh desirability of admission (per )

Factors

• (a) Probative value
• (b) Importance of evidence
• (c) Nature of offence
• (d) Gravity of impropriety
• (e) Whether deliberate or reckless
• (f) Breach of international human rights
• (g) Whether other proceedings have been taken
• (h) Difficulty of obtaining evidence lawfully

Lecturer Notes Impropriety is broader than illegality—includes ethical/professional lapses.

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IRAC Case Summaries

Case: R v Shamouil [2006] NSWCCA 112

Issue Can trial judges exclude evidence on the basis that it appears unreliable under ?

Rule Probative value must be assessed “at its highest”, ignoring issues of credibility and reliability.

Application NSWCCA held the trial judge erred by factoring in credibility, thereby improperly reducing probative value.

Conclusion Reliability is for the jury (weight); admissibility is about capability of proof.

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Case: (2010) 28 VR 188

Issue Should Victorian courts apply the Shamouil approach to assess probative value under ?

Rule Yes — Victorian courts now treat evidence as being accepted and assess what it proves, not how convincing it appears.

Application High Court rejected a “realistic” (reliability-aware) view at admissibility stage.

Conclusion Courts must focus on potential, not likelihood, of evidential contribution when assessing admissibility.

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Quizzes and Worked Examples

Problem: “Anthony’s Drive-By Shooting”

Facts Anthony charged following shooting incident. Prosecution relies on:

1. Eyewitness (Patsy) hearing shot. Note of registration 2 days later
2. Car registered to accused’s brother-in-law
3. Sharon (wife) banned from driving
4. Anthony’s prior gang conviction

Issues

• Whether delayed observation affects admissibility
• Whether vehicle ownership proves presence
• Whether prior conviction is unfairly prejudicial character evidence

Lecturer’s Reasoning

• Patsy’s evidence: relevant; delay affects weight, not admissibility
• Registration note: low reliability → may attract
• Sharon’s ban: inference permissible with direction
• Prior conviction: fails ; motive ≠ sufficient justification due to prejudice

Correct Answer Exclude gang conviction under . Admit remaining evidence, subject to direction under .

Common Missteps

• Treating unreliable evidence as irrelevant
• Assuming “proof of access” is enough to show presence
• Confusing relevance with weight

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Criminal Procedure: Voir Dire

Voir Dire –

Definition

“Trial within a trial” to test admissibility of evidence without prejudicing the jury

Process

• Conducted without jury
• Standard: balance of probabilities
• If excluded, jury never hears it

Uses

• Testing voluntariness of confession
• Determining whether improper conduct occurred under
• Assessing qualifications of expert witness
• Validating documents

Lecturer Notes Emphasised that excluded evidence is “quarantined” from the jury, reinforcing the need to resolve admissibility before jury exposure.

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Practical Exam and Study Tips

IRAC Technique

• I: Identify the piece of evidence and what it’s being used to prove
• R: State the correct discretionary provision
• A: Apply the balancing test step-by-step using facts and risk
• C: Clearly conclude on admissibility

Mnemonics

• “PRExDi-We” = Privilege → Relevance → Exclusionary → Discretion → Weight
• = MAY + SUBSTANTIALLY
• = MUST + no “substantially”

Important Warnings

• Do not treat reliability as a reason to exclude at the admissibility stage
• Always identify which danger is being relied on under
• Do not conflate exclusion with bad evidence—weak ≠ inadmissible

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Supplementary Reading and References

Cases

• R v Shamouil [2006] NSWCCA 112
• (2010) 28 VR 188
• R v Hokai [2007] VSCA 19

Legislation

• (Vic) s, 55, 135–138, 189, 192, 192A
• Jury Directions Act 2015 (Vic)

Other Sources

• Australian Law Reform Commission, (ALRC 102, 2005)

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Open Questions or Clarifications

• Clarify scope of “unfair prejudice” under Victorian appellate authority post-Dupas
• Confirm judicial expectations for form of limiting directions under in judge-alone trials

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