Australian 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 research should not be limited to these resources alone.

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)

Further Instructions:
Please be advised that this assignment should be approached along the lines of a Research Essay. As such, it will need to be in an essay format (not dot point or Q&A – however the appropriate use of headings is encouraged). You will also need things like Introductions and Conclusions. Please avoid using the First Person when writing.

I am not particularly fussed as to how you structure your assignment, as long as it conforms to the usual requirements of good academic writing. Grammar, expression, clarity of argument etc are all import in this regard.

It is strongly suggested that you do not limit yourself to only talking about the cases and the legislation. A major part of the exercise is for you to critically evaluate whether s90 still has a place in the law. Obviously, whatever position you arrive at, it will need to be supported by a well-structured and justified argument. As part of this you are encouraged to look at the interplay of the relevant sections within the Act (both regarding Admissions as well the exercise of Judicial Discretion to Exclude Evidence) and reconcile that against the Authorities dealing with s90.

A good assignment should:
1. address all the main issues raised by the question and engage in a critical analysis;
2. demonstrate ability to interpret the task, answer questions and clearly communicate understanding;
3. demonstrate ability to structure a coherent analysis and argument, logically ordered, and well-supported by your reading and research;
4. demonstrate ability to read, understand, distil and explain legislation and the various authorities;
5. demonstrate creative and critical thinking about the law and issues raised;
6. be written clearly and concisely with correct use of grammar and spelling; and
7. use a clear and consistent citation method, honestly acknowledging the sources of law and your ideas.

Referencing to be used is the Australian Legal Citation

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