Posted: September 1st, 2015

EVIDENCE & CRIMINAL PROCEDURE.

The unfairness discretion embodied in s90 Evidence Act (NSW) 1995, is limited to admission evidence.

In addition to the so-called s90 Discretion, s138 Evidence Act also provides the Court with the ability to exercise its discretion to exclude admission evidence – on the basis that the manner in which the admission was obtained was somehow unlawful or improper.

Critically discuss how the s90 Discretion is currently viewed and applied by the Courts and whether you think there is any utility in the retention of s90, as it currently stands.

You should reflect upon the following materials and authorities when addressing the topic:
• Em v the Queen (2007) 232 CLR 67
• R v Em [2003] NSWCCA 374
• Uniform Evidence Law – ALRC Report 102 (2006)

Your response should attempt to:

a. Explain the various lead authorities on the issue of the application of s90 and its interplay with s138, by examining the reasoning and analysis in the respective decisions. (There is no need to recount the facts)

b. Provide a critical evaluation of the perceived utility of s90 as well as a reasoned discussion identifying any potential detriment and / or benefits that may flow from the repeal of s90.

c. Explain your reasoning why you would / would not support the retention of s90 (with reference to your critical evaluation of its utility)

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