The ‘unfairness’ discretion in s 90

10.98 Section 90 provides an overarching discretion to exclude admissions in a criminal proceeding where, having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use the evidence. The concept of unfairness is not defined in the uniform Evidence Acts. This provision reflects the common law.[146]

10.99 Two issues have arisen with respect to the unfairness discretion in s 90. The first is whether it should be extended to apply to all evidence, not just admissions. The second is whether the section should enumerate some of the factors that the court should take into account when determining whether it would be unfair to the defendant to admit the evidence.

Expanding unfairness to non-admission evidence

10.100 The unfairness discretion at common law, now embodied in s 90, is limited to admission evidence. That is, there is no general discretion (other than the discretionary and mandatory exclusions)[147] to exclude other types of evidence where it would be unfair to the defendant to adduce that evidence. The issue is whether the discretion to exclude admission evidence on unfairness grounds should be extended to apply to non-admission evidence.[148]

History of discrete unfairness discretion for admissions

10.101 The development of the unfairness discretion in the context of admission evidence appears to have been a response to the narrow view of the test of ‘voluntariness’ (the common law admissibility requirement for admissions) taken by the courts.[149] For instance, in McDermott v The King, Dixon J stated that the development of the discretion may have been in part

a consequence of a failure to perceive how far the settled rule of the common law goes in excluding statements that are not the outcome of an accused person’s free choice to speak.[150]

10.102 The unfairness discretion thus acted as a residual safeguard, allowing evidence of admissions to be excluded if, despite the fact that they appeared to be ‘voluntary’, it would be unfair to the defendant to admit them.[151]

10.103 By contrast, ‘real evidence’ could not be excluded solely on considerations of fairness to the accused; it was also necessary to refer ‘to large matters of public policy’.[152] This required the balancing of two competing considerations: the desirable goal of bringing wrongdoers to conviction and the undesirable effect of curial approval or even encouragement being given to unlawful conduct of law enforcement officers.[153] In the exercise of this discretion, the question of unfairness to the accused is just one factor to consider, and its relevance and importance will depend on the circumstances of the particular case.[154] This ‘public policy’ discretion is now embodied in s 138 of the uniform Evidence Acts.

10.104 The public policy discretion was held to apply to confessional evidence in Cleland v The Queen.[155] It was inevitable that there would be considerable overlap between that discretion and the existing (admission-specific) unfairness discretion, at least in cases where a ‘voluntary confessional statement has been procured by unlawful or improper conduct on the part of law enforcement officers’.[156] Despite the overlap, the two discretions were held to be independent but related.[157] The focus of the two discretions is different: the unfairness discretion focuses on the effect of the unlawful conduct on the accused, whereas the public policy discretion focuses on ‘large matters of public policy’.[158]

10.105 Moreover, it has been suggested that in R v Swaffield the High Court took a narrow view of the fairness discretion, holding that it should consider only whether the reception of the evidence is likely to preclude a fair trial, in the sense that it involves a risk of the wrongful conviction of an accused.[159] By contrast, additional factors that do not affect the outcome of the trial, but violate more general notions of fairness, must be considered under the public policy discretion: that is, balanced against the public interest in the conviction of the guilty.[160] The approach to the application of the fairness discretion and its interaction with the public policy discretion adopted in Swaffield has influenced the application of the unfairness discretion under s 90.[161]

10.106 In ALRC 26, the common law unfairness discretion was criticised on the basis that ‘fairness’ is a vague concept that had not been properly defined by the courts, maximising uncertainty and unpredictability and making satisfactory appellate review difficult.[162] Other concerns were that that each possible rationale for the discretion could be satisfactorily met by one of the other proposed provisions, notably ss 85, 137 and 138. It was noted that retaining the discretion could create an additional, unnecessary and unsatisfactory complication of the law relating to evidence of admissions, and that ‘the psychological comfort which is induced by a discretion based on fairness may well be illusory and may be veiling a position which is causing injustice.’[163] It was also pointed out that there are very few reported cases where the discretion has been exercised in favour of the accused.[164] On this basis, it was initially proposed that the discretion not be enacted in the uniform Evidence Acts.

10.107 Following consultations on the issue, it was concluded in ALRC 38 that the continued application of the discretion was necessary to cover situations that can be regarded as ‘unfair’, but where the admission cannot be shown to have been obtained illegally or as a result of improper conduct.[165] This includes where the accused has chosen to speak to the police on the basis of assumptions that were incorrect, whether because of untrue representations or for other reasons.[166] Thus, the discretion was adopted in the uniform Evidence Acts.

10.108 By contrast, a number of common law authorities suggest that the fairness discretion (reflected in s 90) is not limited to evidence of admissions, but can extend to other evidence such as identification evidence and real evidence.[167] In R v Schuurs,Fryberg J noted that the common law fairness discretion was generally discussed in terms of confessional evidence. However:

the purpose of that discretion is the protection of the rights and privileges of the accused, including procedural rights. It would be odd if such a purpose were to be fulfilled only in relation to confessional statements.[168]

10.109 Similarly, in R v Grant, Smart AJ observed:

The question remains whether the court still retains the discretion to exclude otherwise admissible evidence where that is necessary to ensure a fair trial, if the discretions conferred by the Act do not cover the position which has arisen. As I am of the opinion that the use of the evidence in question (the prescribed statement) would not result in an unfair trial for the appellant the question need not be answered and it would be best left to a case where the court receives full argument on the Evidence Act … I would be reluctant to see such a discretion disappear as it is an important aspect of a court’s ability to ensure a fair trial. Experience has shown that it is necessary. It enables the court to deal with new and unforeseen situations.[169]

Submissions and consultations

10.110 In consultations and submissions on DP 69, support is expressed for extending s 90 into a general discretion to exclude non-admission evidence on the grounds of unfairness.

10.111 Jeremy Gans notes there is nothing particular about admission evidence and there is no reason why other evidence should not be excluded if it is ‘unfair’ to the defendant to admit it. He suggests that the sole reason that s 90 continues to apply only to admissions is the (‘tortured’) development of the case law. He also notes the general broadening of the application of the unfairness discretion to real evidence at common law, suggesting that there may be cases where it would be unfair to a defendant to admit certain evidence that is not covered by existing discretions (for example, where the prosecution has destroyed evidence, making it unable to be tested by the defence).[170]

10.112 The Law Council of Australia points out that there will inevitably be overlap between unfairness and other discretions, such as s 138. The Law Council does not see this overlap as a problem, arguing that the fairness discretion in s 90 should apply generally to all evidence tendered against an accused, not simply admissions.[171] The Law Council’s view is that this would emphasise that the uniform Evidence Acts are based on deep-rooted common law notions of fair trial.[172]

10.113 Others agree with the Commissions’ conclusion in DP 69 that s 90 should not be extended beyond admission evidence. The CDPP states that, despite the superficial attraction of creating a general unfairness discretion as part of the obligation to ensure a fair trial, it remains to be convinced that making fairness an overriding consideration is necessary in light of the current operation of Part 3.11 of the uniform Evidence Acts.[173] The Law Society of New South Wales, the Legal Aid Commission of New South Wales and the Office of the Victorian Privacy Commissioner also agree that no change to s 90 is warranted.[174]

The Commissions’ view

10.114 The Commissions maintain the view, expressed in DP 69, that s 90 should not be extended beyond evidence of admissions.

10.115 The fairness discretion embodied in s 90 is part of a broader concern to ensure that accused persons receive a fair trial. In Dietrich v The Queen, Mason CJ and McHugh J stated that ‘the right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system’.[175] What constitutes a fair trial ‘may vary with changing social standards and circumstances’.[176]

10.116 Although the concept of ‘fairness’ embodied in the ‘right’ to a fair trial has many aspects, an important part of the guarantee is procedural rather than substantive.[177] Thus, the ‘right’ to a fair trial is said to be ‘manifested in rules of law and of practice designed to regulate the course of the trial’.[178] These ‘rules of evidence and rules of procedure’ gradually evolved as notions of fairness developed.[179] Arguably then, it is the rules of evidence themselves—or ‘the withholding of evidence from the jury’—which constitute ‘one of the most important manifestations of the principle of a fair trial’.[180]

10.117 Concern for the need to ensure a fair trial clearly underlies many aspects of the rules of evidence, both at common law and in the uniform Evidence Acts. The development of special rules of admissibility for certain categories of (usually prosecution) evidence reflects a broader concern that the trial be conducted as fairly as possible: for instance, evidence that is known to be especially unreliable (for example, identification evidence[181] and hearsay evidence[182]), or evidence that is susceptible to being given disproportionate weight by the fact finder (such as tendency and coincidence evidence[183]). Similarly, the various mandatory and discretionary judicial warnings found at common law and in the Acts seek to ensure fairness among the parties, often particularly for the defendant.[184]

10.118 Equally, concern for the fairness of the trial grounds the discretionary and mandatory exclusions, located in Part 3.11 of the uniform Evidence Acts.[185] Sections 135 and 137 provide for the exclusion of ‘unfairly prejudicial’ evidence. This is consistent with the position at common law where failure to exclude evidence that is unfairly prejudicial to the defence can violate a person’s right to a fair trial.[186] Although s 138(1) does not expressly refer to ‘unfairness’ to the accused as a factor in determining whether it would be undesirable to admit improperly or illegally obtained evidence, it is clear that considerations of fairness to an accused may be taken into account in the exercise of that discretion.[187] Admittedly, in R v Em, Howie J (with whom Ipp JA and Hulme J agreed) stated:

[S]ection 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused.[188]

10.119 Despite this, Odgers comments that ‘while it must be correct that fairness is not “paramount”, in the sense of determinative in the application of s 138, there is clearly a public interest in an accused receiving “a fair trial”’, and admitting evidence that would result in an ‘unfair’ trial for the accused is clearly undesirable.[189]

10.120 The combination of the obstacles to admissibility of certain categories of evidence, the discretionary and mandatory exclusions in Part 3.11, and the underlying concern for the fairness of the trial in the rules of evidence as a whole, make it highly likely that a court would be able to exclude a piece of evidence that would jeopardise the right of an accused to a fair trial under an existing provision in the uniform Evidence Acts.[190] For this reason, the Commissions’ view is that there is no need to expand the unfairness discretion beyond the area of admission evidence.

10.121 The Commissions acknowledge that if a general unfairness discretion is viewed as unnecessary in the context of ‘real’ evidence, there is an argument that the discretion should be abandoned with respect to admission evidence. That argument is bolstered by the existence of additional barriers to the inclusion of admission evidence, apart from those in Part 3.11; most notably ss 84 and 85.

10.122 On the other hand, as this chapter has discussed, courts have always been particularly sensitive to allowing evidence of admissions (at least when the admission is made to an investigator). Admissions constitute an exception to the hearsay rule, but they remain susceptible to fabrication or to being tainted by improper or illegal official conduct. In addition, admissions tend to be regarded by tribunals of fact as highly probative evidence, regardless of their reliability, and there is a concern that, once admitted, juries tend to attach significant weight to them. A further consideration relates to the law’s long-held aversion to compelled self-incrimination.[191]

10.123 While these issues may be dealt with under other provisions in the uniform Evidence Acts—such as ss 85, 137 and 138—the potential unfairness in using a person’s own statement against him or her at trial, and the weight attached to admission evidence by tribunals of fact, arguably justify the continued existence of a residual discretion to exclude such evidence if it would be broadly unfair to use it. As noted in ALRC 38, the aim of the s 90 discretion is to allow the trial judge the discretion to exclude evidence of admissions where that evidence was ‘obtained in such a way that it would be unfair to admit the evidence against the accused who made them’, but was not otherwise covered by the discretion to exclude illegally or improperly obtained evidence.[192] That is, unlike s 138, s 90 is not confined to unlawfully obtained evidence and is thus more effective, for example, where the accused chose to speak to the police but on the basis of false assumptions.[193]

10.124 The Commissions believe that, on balance, the discretion in s 90 should be retained, but continue to be limited to admission evidence.

Defining ‘fairness’

10.125 The meaning and scope of the concept of ‘fairness’, both at common law and within s 90, are notoriously unclear.[194]

10.126 In R v Swaffield, a majority of the High Court acknowledged that fairness is an inherently vague concept, whose ‘very nature … inhibits great precision’.[195]The court accepted that the exercise of the unfairness discretion is uncertain because courts have not defined the policy behind the discretion or the relevant considerations to be taken into account in its application.[196]

10.127 Case law provides some guidance on the factors relevant in assessing unfairness. In Foster v The Queen,the High Court found that any significant infringement of the defendant’s rights would constitute unfairness.[197] In R v Swaffield, the High Court suggested that the purpose of the discretion is to protect the right of an accused to a fair trial. Thus, the unfairness discretion should focus on ‘whether the reception of the evidence is likely to preclude a fair trial’, in the sense that it involves a risk of the wrongful conviction of an accused’.[198] The majority stated in R v Swaffield:

Unreliability is an important aspect of the unfairness discretion but it is not exclusive. … [T]he purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.[199]

10.128 The discretion is not intended to act as a sanction against police officers for failing to obey police regulations.[200] Thus, ‘unfairness’ is assessed by reference to how the admission is used in evidence by the prosecution, rather than through an assessment of whether the accused was treated unfairly by the police.[201]

10.129 The general purpose of the discretion, to protect the right of the accused to a fair trial, also incorporates consideration of whether ‘any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated’.[202] However, the admission of an improperly obtained admission into evidence would not necessarily constitute a forensic disadvantage for the accused. Rather, the disadvantage must affect the conduct of the defence,[203] in the sense that ‘the accused is forced to defend him or herself against unreliable evidence’.[204] Although the fairness discretion primarily involves questions of reliability,[205] reliability is not ‘the sole touchstone’ of unfairness.[206]

10.130 Despite the guidance on the application of s 90 and the common law fairness discretion given in case law, the scope of the discretion remains uncertain. The public policy discretion in s 138(3) lists a number of matters that the court may take into account when exercising its discretion. Given the subsisting uncertainty as to the meaning of the concept of ‘unfairness’, it has been argued that s 90 should similarly define the circumstances when it would be unfair to admit into evidence a defendant’s admission.

Submissions and consultations

10.131 It was asked in IP 28 whether s 90 of the uniform Evidence Acts should define the circumstances in which it would be unfair to admit an admission against a defendant.[207] In DP 69, the Commissions concluded that no amendment to s 90 is necessary.[208]

10.132 In consultations and submissions on IP 28, some considered the fairness discretion too open-ended. There was support for the inclusion in s 90 of additional guidance as to the circumstances that may constitute unfairness,[209] possibly in the form of a list of factors to be weighed when deciding whether evidence is sufficiently probative to warrant inclusion.[210] The NSW DPP also supported the call for additional guidance, but suggest that that guidance should not be prescriptive or exhaustive of all the factors that would meet that description.[211] For example, s 90 could state that any significant infringement of the rights of the accused would constitute unfairness within the section. Alternatively, it was suggested that further guidance on the exercise of discretions can be established through guideline judgments.[212]

10.133 Rather than defining the circumstances in which it would be unfair to allow an admission into evidence, some New South Wales District Court judges suggested that fairness should be partially defined.[213] By contrast, the NSW PDO submitted that any attempt to define ‘fairness’ as used in s 90 would narrow the meaning of the concept, arguing that ‘fairness’ cannot, and should not, be defined.[214]

10.134 ASIC submits that no attempt should be made to prescribe the circumstances in which it would be unfair to allow a defendant’s admission into evidence.[215] ASIC argues that any attempt to prescribe the circumstances of unfairness is likely to result in complex legislation which will provide fertile ground for argument as to whether a given fact situation fits within the prescribed circumstances. ASIC considers that a list of investigative techniques that is considered either legitimate or unfair will be of limited value because a legitimate technique may be carried out in a manner or in circumstances resulting in unfairness.[216]

10.135 The Law Council of Australia submits that it would not be helpful to define the circumstances in which it would be unfair to allow into evidence an admission against a defendant.[217] The phrase ‘unfair to a defendant’ is capable of a broad interpretation, ensuring a fair trial by taking into account matters going to the justice of individual cases and to the moral integrity of the trial process. Concerns are also raised that the exercise of judicial discretion may become more complex if there is an increase in the factors which the court must consider.[218]

10.136 Following the Commissions’ proposal in DP 69 not to amend s 90, few comments or submissions on this issue were received. Some support is expressed for the decision not to amend the section.[219]

The Commissions’ view

10.137 The Commissions maintain the view expressed in DP 69 that any attempt to define ‘unfair’ in s 90 would limit the discretion and could have unforeseen consequences. There are two reasons for this: first, the concept of ‘fairness’ itself remains difficult to define to the extent that would be required for any amendment; and secondly, any attempt to define the application of s 90 would undermine the desirable flexibility and scope of the section.

10.138 As Odgers observes, given the elusiveness of the concept of ‘fairness’, it is difficult to provide comprehensive guidance on the relevant considerations to the exercise of this discretion.[220] A review of the case law shows that comprehensive guidance would not be practicable. In the exercise of the fairness discretion, examples of relevant considerations include the nature and extent of any infringement of the accused’s rights and privileges, and cases where ‘the circumstances in which the admission was made rendered it unreliable’.[221] However, the discretion is not limited to such cases.

10.139 Further, there are certain matters which may not necessarily be regarded as unfair to an accused—whether they would be so regarded would depend on the circumstances of the case—thus making it more difficult to provide comprehensive guidance. Examples of matters which would not necessarily be regarded as unfair include:

  • the use of an admission which has been compelled by law;[222]

  • an interview conducted despite the suspect’s objection;[223]

  • continuation of an interview despite an indication from the suspect that he or she did not wish to participate further;[224]

  • interviewing a suspect who is intellectually handicapped or who suffers from a disease or disorder of the mind;[225]

  • interviewing an accused who is affected by alcohol or drugs;[226] and

  • admissions made to police informers.[227]

10.140 It is inherently difficult to be prescriptive in the exercise of the fairness discretion because it involves an evaluation of circumstances.[228] Even an attempt to list a series of ‘non-exhaustive’ factors to be taken into account in the exercise of judicial discretion in the application of s 90 may be problematic. This is because, in practice, the enumeration of non-exhaustive factors could still result in narrowing the application of s 90 to circumstances of the types listed, undermining its flexibility.

10.141 Admittedly, the scope of s 90 remains broad. This may cause difficulties for courts applying the provision at first instance and on appeal.[229] Despite this, on balance the Commissions consider that the breadth and lack of specificity in s 90 are positive, rather than negative, aspects of the provision—aspects which are to some extent inherent in all broad judicial discretions. The Law Reform Commission of Canada, in a passage cited with approval by the High Court in Swaffield, noted that

there is an undeniable advantage in granting judges discretionary power, since it keeps the court continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities.[230]

10.142 As outlined above, s 90 is intended to deal with unfair situations that are not otherwise covered by admissibility rules for admission evidence. Any attempt to define the operation of s 90 would undermine the capacity of the section to act as a residual ground for exclusion of evidence of admissions in unforeseen circumstances. For this reason, and in order for the concept of ‘fairness’ to remain ‘broad enough to adapt to changing circumstances as well as evolving community values’,[231] it is not considered wise to fetter this discretion.

10.143 The Commissions’ view is that the principles expounded in R v Swaffield provide sufficient guidance for the exercise of the fairness discretion and that further rules or a list of factors may narrow the scope of the discretion unnecessarily. Section 90 should therefore not be amended.

[146] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [761].

[147] See Ch 16.

[148] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [9.78].

[149] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [761].

[150] McDermott v The King (1948) 76 CLR 501, 512.

[151] R v Swaffield (1998) 192 CLR 159, [15].

[152] Bunning v Cross (1978) 141 CLR 54, 76–77. Earlier, at 74, the Court contrasted the Australian position with the UK’s approach where the leading authority (then, Kuruma v The Queen [1955] AC 197) held that the discretion to exclude real evidence unlawfully obtained was part of the general discretion which always exists to exclude admissible evidence when to admit it would be unfair to the accused.

[153] Bunning v Cross (1978) 141 CLR 54, 74.

[154] Ibid, 74; R v Swaffield (1998) 192 CLR 159, [22]–[25].

[155] Cleland v The Queen (1982) 151 CLR 1. See also R v Swaffield (1998) 192 CLR 159, [23].

[156] Cleland v The Queen (1982) 151 CLR 1, 23–24; cited in R v Swaffield (1998) 192 CLR 159, [23]. See also Pollard v The Queen (1992) 176 CLR 177, 201.

[157] Cleland v The Queen (1982) 151 CLR 1, 23; cited in R v Swaffield (1998) 192 CLR 159, [23].

[158] Foster v The Queen (1993) 67 ALJR 550, 554, citing Bunning v Cross (1978) 141 CLR 54, 77.

[159] See J Clough, ‘The Exclusion of Voluntary Confessions: A Question of Fairness’ (1997) 20(1) University of New South Wales Law Journal 25, 26–27; B Presser, ‘Public Policy, Police Interest: A Re-evaluation of the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence’ (2001) 25 Melbourne University Law Review 757, 760.

[160] J Clough, ‘The Exclusion of Voluntary Confessions: A Question of Fairness’ (1997) 20(1) University of New South Wales Law Journal 25, 26–27, 35.

[161] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5760].

[162] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [150]–[153], [382]–[384].

[163] Ibid, [384].

[164] Ibid, [378].

[165] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [160]. See S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5760].

[166] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [162].

[167] R v Edelsten (1990) 51 A Crim R 397, 408; Police (SA) v Jervis (1998) 101 A Crim R 1, 14; Pearsall v The Queen (1990) 49 A Crim R 439, 442–443. See also S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5860].

[168]R v Schuurs [1999] QSC 176, [27].

[169] R v Grant (2001) 127 A Crim R 124, [85]. Smart AJ also referred to: McDermott v The King (1948) 76 CLR 501, 506–507, 513–515; R v Lee (1950) 82 CLR 133, 150–151; MacPherson v The Queen (1981) 147 CLR 512, 519–520; Cleland v The Queen (1982) 151 CLR 1, 18, 31, 34; Phillips v The Queen (1985) 159 CLR 45, 51.

[170] J Gans, Submission E 59, 18 August 2005.

[171] Law Council of Australia, Submission E 32, 4 March 2005.

[172] Ibid.

[173] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[174] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005, support for whom was expressed by Legal Aid Commission of New South Wales, Correspondence, 10 October 2005; Office of the Victorian Privacy Commissioner, Submission E 115, 30 September 2005.

[175] Dietrich v The Queen (1992) 177 CLR 292, 299. See also, generally, F Wheeler, ‘Fair Trial and the Australian Constitution’ (2005) 17(3) Legal Date 7.

[176] Dietrich v The Queen (1992) 177 CLR 292, 328.

[177] Ibid, 299–300 per Mason CJ and McHugh J; 353, per Toohey J.

[178] Ibid, 299–300.

[179] Ibid, 328.

[180] J Spigelman, The Internet and the Right to a Fair Trial: Address by the Honourable JJ Spigelman AC, Chief Justice of New South Wales, to the 6th World Wide Common Law Judiciary Conference, Washington DC, 1 June 2005 (2005) <www.lawlink.nsw.gov.au> at 24 November 2005. See also Connelly v DPP [1964] AC 1254, 1347.

[181] Uniform Evidence Acts, Part 3.9.

[182] Ibid, Part 3.2.

[183] Ibid, Pt 3.6.

[184] Ibid Pt 4.5, s 116. See discussion in Ch 18.

[185] See Ch 16.

[186] Dietrich v The Queen (1992) 177 CLR 292, 323 fn 15. It has been noted that the common law discretion derives from a concern to protect the accused from unduly prejudicial evidence—prejudicial because it may be given too much weight or because it may lead to conviction on an improper basis. This concern in turn reflects both a desire to ensure accurate fact finding and a policy to prevent innocent persons being convicted: Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [761].

[187] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.15020].

[188] R v Em [2003] NSWCCA 374, [74].

[189] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.15020].

[190] J Gans, Submission E 59, 18 August 2005.

[191] McDermott v The King (1948) 76 CLR 501, 513. The privilege against self-incrimination is enshrined in Uniform Evidence Acts s 128. See also Australian Law Reform Commission, Admissions, RP 15 (1983), [81].

[192] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [160].

[193] Ibid, [160].

[194] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5760].

[195]R v Swaffield (1998) 192 CLR 159, [66].

[196] Ibid, [66].

[197]Foster v The Queen (1993) 67 ALJR 550.

[198] See B Presser, ‘Public Policy, Police Interest: A Re-evaluation of the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence’ (2001) 25 Melbourne University Law Review 757, 760; J Clough, ‘The Exclusion of Voluntary Confessions: A Question of Fairness’ (1997) 20(1) University of New South Wales Law Journal 25, 26–27.

[199]R v Swaffield (1998) 192 CLR 159, [78].

[200] Ibid, [15].

[201]R v Lee (1950) 82 CLR 133, 154; Van Der Meer v The Queen (1988) 35 A Crim R 232, 248; R v Em [2003] NSWCCA 374, [104].

[202]R v Em [2003] NSWCCA 374, [104] citing R v Swaffield (1998) 192 CLR 159, 189.

[203] A Palmer, ‘Police Deception, the Right to Silence and the Discretionary Exclusion of Confessions’ (1998) 22 Criminal Law Journal 325, 332.

[204] B Presser, ‘Public Policy, Police Interest: A Re-evaluation of the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence’ (2001) 25 Melbourne University Law Review 757, 760.

[205] A Palmer, ‘Police Deception, the Right to Silence and the Discretionary Exclusion of Confessions’ (1998) 22 Criminal Law Journal 325, 340.

[206]R v Swaffield (1998) 192 CLR 159.

[207] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), 113, Q 7–3.

[208] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005).

[209] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005, 17; J Gans, Consultation, Sydney, 6 September 2004; W Roser, Consultation, Sydney, 17 August 2004.

[210] W Roser, Consultation, Sydney, 17 August 2004.

[211] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; J Gans, Consultation, Sydney, 6 September 2004.

[212] J Gans, Consultation, Sydney, 6 September 2004.

[213] New South Wales District Court Judges, Consultation, Sydney, 3 March 2005.

[214] New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[215] Australian Securities & Investments Commission, Submission E 33, 7 March 2005.

[216] Ibid.

[217] Law Council of Australia, Submission E 32, 4 March 2005.

[218] P Zahra, Consultation, Sydney, 18 August 2004.

[219] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005 with whom support is expressed by the Legal Aid Commission of New South Wales, Correspondence, 10 October 2005; Office of the Victorian Privacy Commissioner, Submission E 115, 30 September 2005.

[220] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5770].

[221] Ibid, [1.3.5770].

[222] Director of Public Prosecutions (NSW) v Alderman (1998) 104 A Crim R 116.

[223] R v Phan (2001) 123 A Crim R 30, [54]–[55].

[224] R v Clarke (1997) 97 A Crim R 414.

[225] R v Donnelly (1997) 96 A Crim R 432.

[226] R v Helmhout (2000) 112 A Crim R 10, [39].

[227] R v Swaffield (1998) 192 CLR 159. See also R v Pfennig (No 1) (1992) 57 SASR 507; R v Bailey and Smith (1993) 97 Cr App R 365; R v Lowe [1997] 2 VR 465; R v Juric (2002) 129 A Crim R 408.

[228] B Selway, ‘Principle, Public Policy and Unfairness: Exclusion of Evidence on Discretionary Grounds’ (2002) 23 Adelaide Law Review 1, 5.

[229] See concerns raised in Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [382]–[384].

[230] Ibid, [964], citing Law Reform Commission of Canada, Compellability of the Accused and the Admissibility of His Statements: A Study Paper (1973).

[231] R v Swaffield (1998) 192 CLR 159, [53].