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Justice is fairness

Feature Articles

Cite as: May 2015 89 (5) LIJ, p.46

The Court of Appeal has confirmed that courts continue to have a residual common law discretion to exclude evidence unfair to an accused. 

By Michael R Wilson

The Court of Appeal recently confirmed by majority in Haddara v The Queen1 (Haddara) that Victorian judges and magistrates have a common law discretion to exclude evidence unfair to an accused. The majority rejected the Crown’s argument that the Evidence Act 2008 (Vic) (EA) has codified the law on the discretion to exclude otherwise admissible evidence. The majority accepted2 that the EA has effectively re-enacted the three main common law discretions previously operating in this area – the Lee3 (s90) (Lee), Christie4 (s137) (Christie) and Bunning v Cross5 (Bunning) and Ridgeway6 (s138) (Ridgeway) discretions. However, beyond these specific provisions, courts retain a residual discretion to exclude evidence to discharge their duty to ensure an accused receives a fair trial. The majority also held that s464J(c) of the Crimes Act 1958 (Vic) (CA) – which refers to the “discretion of a court to exclude unfairly obtained evidence” – has not been impliedly repealed by the EA.

The facts

Waleed Haddara (H) sought leave to appeal against convictions for intentionally causing serious injury and reckless conduct endangering a person. The charges arose from a drive-by shooting, where several shots were fired from one car into another. The Crown called evidence from XY, who said he was driving H on the night of the shooting. XY produced a mobile phone recording of what he claimed was a conversation in the car between him and H, where two voices and gunshots were heard. The Crown also relied on H’s record of interview, not as admissions (as it contained none), but rather as a voice sample which the jury was asked to compare with the voice on the phone recording.

Defence counsel objected to the tender of the record of interview, arguing that H’s intellectual disability (IQ of 53) meant he would not have understood his right not to say anything, hence it was unfair to admit the evidence. Further, it was unfair for the jury to compare the voice in the interview with the voice on the recording given that the Crown’s own expert had concluded that the interview was unsuitable as a sample for analysis.

Trial ruling

Although the trial judge recognised that the record of interview was not an admission, with the agreement of trial counsel his Honour approached the issue through the prism of s90 and, to a lesser extent, s137 of the EA.

Section 90 provides that the court may refuse to admit prosecution evidence of an admission if “. . . having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence”.

Section 137 provides that “in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused”.

The defence did not rely on s138, which provides that evidence obtained improperly or in contravention of an Australian law, or as a consequence of impropriety or contravention of an Australian law, is not to be admitted unless the desirability of doing so outweighs the undesirability of admitting evidence obtained in such a way.7

The judge considered the key issue was “. . . whether the accused man’s intellectual impairment so compromised his proper exercise of his right not to answer questions that it would be unfair to him to admit the answers in evidence for the purpose of comparing his voice with the voice . . . in the recording made by XY”.8 His Honour considered that the police had not acted unfairly or improperly, and H had effectively exercised his right to silence at many stages of the interview, answering some questions but not those touching on the shooting itself. Further, the voice comparison proposed by the Crown was a different task from the statistical analysis undertaken by the expert. Accordingly, no unfairness arose and the evidence was not excluded under s90 or s137.


It was common ground that s90 was not applicable, as it concerns only admissions. The appeal judges agreed that the recording of H’s voice in the police interview was not an admission, but rather a piece of real evidence.9 They also agreed that the evidence caused no unfair prejudice for the purpose of s137. As counsel on the appeal explicitly disavowed any reliance on s138, a question arose as to whether the evidence should have been excluded on any other basis.

H argued that the evidence should have been excluded under a common law fairness discretion which had survived the introduction of the EA. He submitted that s464J(c) of the CA preserves the common law discretion. That provision states that nothing in subdivision 30A of the CA (which concerns the rights of accused persons in a police custody and investigation context) “affects the discretion of a court to exclude unfairly obtained evidence”.

The Crown submitted that any general common law fairness discretion was abrogated by the EA. While s9 of the EA provides that the EA does not affect the operation of a common law rule except so far as the EA provides otherwise, the Crown argued that the language of the EA does provide otherwise in relation to the admissibility of evidence, as Chapter 3 is effectively a code as to both admissibility and exclusion of evidence. The Crown relied particularly on s56(1), which provides that: “Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding”.

The dissenting view

Priest JA accepted the Crown’s submission, concluding that ss90 and 138 covered the field regarding the common law discretions to reject evidence on unfairness and public policy grounds.10

His Honour stated that s56(1) is expressed in unequivocal terms, and does not give room for exclusionary rules — including common law exclusions — save as provided by the EA. Where relevant evidence — otherwise admissible — is subject to exclusion provided for in the EA, it ceases to be admissible. The evidence loses its admissible character, because it is “otherwise provided by [the EA]”. In practical effect, the evidence becomes inadmissible in the proceeding.11

His Honour also considered that s464J(c) of the CA was impliedly repealed. Although the trial judge erred by analysing the issue under s90, the error made no difference as the judge carefully and correctly analysed “. . . the same kinds of considerations that would have animated the exercise of the unfairness discretion at common law, and found that it would not be unfair to admit the record of interview for the purposes of voice comparison”.12

The majority view

The majority agreed with Priest JA that no different result would have occurred if the judge had exercised the residual common law fairness discretion rather than the s90 discretion.13 Accordingly, the Court unanimously granted leave (on the basis of the s90 error) but dismissed the appeal. On the point of principle, the majority differed significantly from Priest JA. The majority concluded14 that:

  • the general common law discretion to exclude evidence unfair to an accused has survived the EA, and is not confined to evidence unfairly procured;
  • Chapter 3 is not a code as to the exclusion of admissible evidence;
  • section 464J of the CA has not been impliedly repealed.

Regarding the origins of the common law discretion, while the seminal High Court case of Lee concerned admissions, their Honours observed that:15

“. . . the ‘fairness’ discretion was never confined to confessional evidence and has been enlivened to exclude identification and real evidence”.

Their Honours further observed:16

“. . . that there is a general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receive a fair trial. That general discretion is an indispensable tool if a trial judge is to have the capacity in all circumstances to discharge their overriding duty of ensuring that the accused receives a fair trial”.

Their Honours reviewed17 many authorities from Australia and England, containing relevant statements of principle, the clearest of which is the Victorian Full Court’s observation that:18

“The proposition must be accepted that there is a discretion in a criminal case to reject any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. So much must be accepted both on principle and by reason of the authorities. It would be wrong to regard as exhaustive the two particular discretions (that relating to probative value and prejudicial effect and that established by Bunning v Cross) put forward by the Attorney-General in McLean and Funk as the only discretions available for the exclusion of evidence other than confessional evidence. But while the existence of a residual discretion must be accepted, it is not easy to think of circumstances in which grounds might exist for the exercise of that residual discretion in relation to any evidence — we are not speaking of confessions — which would not bring the case within the more specific principle whereby evidence is not to be admitted where its prejudicial effect is out of proportion to its probative value.”

Did the legislature intend to displace the common law discretion?

The majority observed that:19

“Plainly, nothing in the Act impinges upon the obligation that rests upon every trial judge to ensure that the accused receives a fair trial. The Law Reform Commission itself said that this obligation was ‘adequately enshrined in the common law’ and that its inclusion in the Uniform Evidence Acts would be ‘redundant and potentially counterproductive’. One is thus driven to ask how the trial judge is to discharge that duty where evidence which would make the trial unfair cannot be excluded under any of the specific provisions in the Act.”

The majority also stated20 that the exclusionary rules in Chapter 3 of the EA only come into play if evidence is first admissible. Section 56 is not concerned with exclusionary rules but rather whether evidence is legally admissible. In this regard, they contrasted the language of provisions such as ss56, 84 and 85 on the one hand (which refer to evidence not being “admissible” – that is, the language of admissibility), with the language of ss90, 137 and 138 (referring to powers to “refuse to admit evidence” and that evidence “not to be admitted unless” – that is, the language of exclusion). They added:21

“The words ‘except as otherwise provided by this Act’ in s56(1) are to be understood as referring to these explicit provisions [ss84, 85 etc] which declare particular categories of evidence to be inadmissible. It does not affect provisions that confer power to exclude evidence that is admissible — which is the area in which exclusionary discretions operate at common law. With respect to those who have suggested otherwise [the author takes this to be a reference to the Full Federal Court in McNeill v The Queen22, the Australian Law Reform Commission and leading evidence commentator Stephen Odgers] we do not agree that the discretionary provisions of exclusion bear upon whether ‘relevant’ evidence is admissible.”

They later observed that while the Full Federal Court decision in McNeill held that ss85 and 138 of the EA impliedly repealed s410 of the Norfolk Island Criminal Law Act 1960 (which essentially provided for the exclusion of confessions induced by untrue representations by people in authority), ss85 and 138 were wider in scope than s410.23 In contrast, the common law discretion discussed in Haddara was wider than the more specific provisions said to have impliedly repealed it. The majority also considered24 that the reasoning in McNeill “rested on the erroneous assumption that s56 governed exclusionary as well as admissibility provisions”. The result seems to be that McNeill has been disapproved or, at the very least, confined to its own context.

Scope of the unfairness discretion

In one sense, the decision in Haddara does not break new ground, as it effectively reiterates what the Full Court said almost 20 years ago in Beljajev. However, in light of statements by law reform bodies, Odgers and the Full Federal Court about Chapter 3 of the EA overtaking that law, Haddara is an interesting pronouncement on a point of fundamental principle. The fact that the Court of Appeal divided on the issue indicates that reasonable minds may differ, and it seems likely that other intermediate appellate courts, if not the High Court, will revisit the issue at some point.

True, it is that the majority in Haddara stated25 that the Christie and Lee discretions were illustrations of that general unfairness discretion. However, they also pointed out26 that courts have power to exclude evidence even where its prejudicial effect does not outweigh its probative value. Importantly, none of the authorities cited in Haddara involved a situation where the particular evidence passed through the filter of the more specific exclusionary rules only to be excluded at the last hurdle by a more general fairness discretion. Further, while there is no shortage of statements recognising the existence of the broad discretion, such statements typically observe that it is hard to conceive of a set of facts that could invoke it.

It is at least clear that the common law discretion is broader than the Christie discretion and, by extension, the exclusionary rules in ss135 and 137 of the EA. Further, it is conceptually distinct from the public policy discretions described in Bunning and Ridgeway, which are now effectively overtaken by s138.27 Also, invoking the concept of “fairness” as it does, some guidance might be sought from cases decided under s90. In Em v The Queen28 Gleeson CJ and Heydon J observed29 that the language of s90 “is so general that it would not be possible in any particular case to mark out the full extent of its meaning”. Similarly, Gummow and Hayne JJ observed that the concept of unfairness in s90 “cannot be described exhaustively”.30

The meaning of unfairness in the context of the residual discretion is likely to prove similarly elusive. But therein lies the strength of the concept. Just as the court’s power to stay a proceeding on the ground of unfairness or abuse of process is, by definition, flexible and to be exercised having regard to the particular circumstances of each case, so too must the residual discretion to exclude unfair evidence. Although the scope of the discretion is unclear, its flexible nature means that practitioners should be aware of its existence and alive to its potential.

MICHAEL R WILSON is a barrister practising in criminal, commercial and common law. Having previously worked as a lawyer at the Court of Appeal Registry, he has a particular interest in criminal appeals.

1. Haddara v The Queen [2014] VSCA 100 (Haddara) per Redlich and Weinberg JJA. Priest JA gave a separate judgment dissenting on the key point of principle, but agreeing with the majority that the appeal should be dismissed.
2. Note 1 above, at [71].
3. R v Lee (1950) 82 CLR 133.
4. R v Christie [1914] AC 545.
5. Bunning v Cross (1978) 141 CLR 54.
6. Ridgeway v The Queen (1995) 184 CLR 19.
7. DPP v Haddara (Ruling No 1) [2012] VSC 276, at [21].
8. Ruling [52].
9. Note 1 above, at [2], [5] [121], [128], [133]. A useful analogy may be a handwriting sample.
10. Note 1 above, at [165].
11. Note 1 above, at [162].
12. Note 1 above, at [183].
13. Note 1 above, at [13].
14. Note 1 above, at [12].
15. Note 1 above, at [14].
16. Note 1 above, at [16].
17. Note 1 above, at [23]-[48].
18. Rozenes v Beljajev [1995] 1 VR 533, 549 (citations omitted). See also Harriman v The Queen (1989) 167 CLR 590, 594–5 (Brennan J).
19. Note 1 above, at [53].
20. Note 1 above, at [59]-[62].
21. Note 1 above, at [65].
22. McNeill v The Queen (2008) 168 FCR 198.
23. In particular, s85 dealt not only with threats and promises, but also extended to confessions made as the result of inducements or acts of non-authority figures capable of influencing the decision whether to prosecute: McNeill [67]. Similarly, s138 extended to statements that were not wilfully false whereas s410 related only to wilful falsity: McNeill at [74].
24. Note 1 above, at [68].
25. Note 1 above, at [50].
26.Note 1 above, at [26]. See also Sutton v The Queen (1984) 152 CLR 528, 565 (Dawson J).
27. Note 1 above, at [50].
28. (2007) 232 CLR 67.
29. (2007) 232 CLR 67 at [56].
30. (2007) 232 CLR 67 at [109].


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