27. Exclusion of Evidence — Master Cheat Sheet (Vic)¶
Scope and currency
Reference sheet · Evidence Act 2008 (Vic) ss 55–57, 84–90, 135–139, 142, 189 + Crimes Act 1958 (Vic) ss 464A–464H + Criminal Procedure Act 2009 (Vic) Div 7B · the full sequential pathway
Admissibility is determined sequentially. Relevance is the primary rule: evidence that, if accepted, could rationally affect the assessment of the probability of a fact in issue is relevant (s 55(1)) and, except as otherwise provided, admissible (s 56(1)); irrelevant evidence is inadmissible (s 56(2)). Relevant evidence must then clear each engaged exclusionary rule by way of exception; an admission must additionally satisfy ss 84–90. Only evidence that is legally admissible reaches Part 3.11 — the s 137 / s 135 balancing does not arise until then — and any impropriety in obtaining it enlivens the two-stage s 138. Preliminary facts are found on the voir dire (s 189) on the balance of probabilities (s 142(1)), weighing the importance of the evidence and the gravity of the matters alleged (s 142(2), Briginshaw).
The router — fact trigger to rule¶
| If the issue is… | Primary rule | Nature |
|---|---|---|
| Relevance contested, marginal or conditional | ss 55–57 | gateway — no discretion |
| Admission after violence / oppression / threats | s 84 | mandatory exclusion |
| Admission possibly unreliable (official / influencer) | s 85 | mandatory unless reliable |
| Unfair to use an admission at trial | s 90 | discretion (accused's onus) |
| ROI unrecorded / rights breached | Crimes Act ss 464A–464H | strict, then s 138 |
| FV complainant's recorded statement (DREC) | CPA Div 7B (ss 387C–387H) | strict preconditions |
| Pros evidence: prejudicial effect > probative value | s 137 | mandatory exclusion |
| Any party's evidence: prejudice / misleading / waste | s 135 | general discretion |
| Obtained improperly or unlawfully (incl. no caution) | ss 138–139 | two-stage, onus shifts |
| How/when the ruling is made or challenged | s 189; CPA ss 199, 295 | procedure |
G0 — The relevance gateway (ss 55–57)¶
The rule: evidence is relevant if, were it accepted, it could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue (s 55(1)). The threshold is low — a minimal logical connection — and evidence is either relevant or it is not: no discretion is exercised here (Smith v The Queen (2001) 206 CLR 650). The judge takes the evidence at its highest, assuming the jury will accept it (IMM v The Queen (2016) 257 CLR 300). Always identify the precise use the evidence is tendered for.
Two recurring branches:
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Conditional relevance — where relevance depends on an anterior finding (authenticity, identity of a voice, connection of an item), the court may admit provisionally if it is "reasonably open" to make that finding, or subject to further evidence (s 57(1)) — an exception to the s 142 standard.
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Police comparing the accused to CCTV — irrelevant, and so inadmissible, where the officers are normally in no better position than the jury to make the comparison (Smith).
The IMM limiting case — irrelevant, or merely weak?¶
| Case | What was tendered | Limiting case? | Why |
|---|---|---|---|
| DPP v Paulino (Ruling No 4) [2017] VSC 346 | CCTV of a vehicle near a murder scene, in a circumstantial case. | YES — excluded | Bell J: entirely incapable of supporting a logical inference that the vehicle was the accused's; any inference purely speculative → irrelevant (s 55(1)), inadmissible (s 56(2)). |
| DPP v Lu (Ruling No 1) VSC 162 | Witness evidence whether a pedestrian light was red or green. | YES — excluded | Fox J: not because the witnesses were preposterous, but the "myriad of other issues" robbed the evidence of logical capacity to assist the jury. |
| Fowkes v The King [2023] VSCA 160 | Drug use, stress, the brief nature of the attack. | NO — admitted | These went strictly to credibility and reliability — jury matters — not to legal preposterousness. [NOT INCLUDING ID EVIDENCE THAT WAS EXCLUDED] |
| Hague v The Queen [2019] VSCA 218 | Visual ID with "inherent contradictions" across successive statements. | NO — admitted | Exclusion overturned: the approach was foreclosed by IMM; internal inconsistencies go to credibility, and the judge must assume the jury accepts the evidence. |
| IMM; R v Dickman (2017) 261 CLR 601 | The "foggy night" ID — brief, bad light, stranger witness. | NO — weak only | Not fanciful; inherently qualified by poor conditions. Passes s 55, but its "highest" is "not very high at all" → attack under s 137. |
Admissions — ss 84, 85, 90¶
M1 · s 84 Influencing conduct — violence, oppression, threats
Was the admission influenced by violent, oppressive, inhuman or degrading (VOID) conduct? Evidence of an admission is not admissible unless the court is satisfied the admission and its making were not influenced by VOID conduct or a threat of it, whether toward the maker or another (s 84(1)). Oppressive is not confined to physical conduct — it covers mental and psychological pressure — and does not require the will to be "overborne" as at common law. The accused raises the issue (s 84(2)) by pointing to evidence of a reasonable possibility of influence; the legal burden then falls on the prosecution (BOP, s 142). The conduct need not be the sole or dominant cause — one operative factor is enough, and exclusion is then mandatory. Common-law voluntariness (McDermott v The King (1948) 76 CLR 501) is wholly subsumed by ss 84–85 — do not plead "involuntariness" as a freestanding ground.
s 84 — what counts as VOID conduct¶
| Category | Example | Authority |
|---|---|---|
| Scope | Oppression extends beyond physical threats to mental and psychological pressure. | Higgins v The Queen [2007] NSWCCA 56 |
| Undermining legal advice | Police seeking to undermine the solicitor's advice or indicating the accused cannot leave until they answer substantively. | R v Lynn (Rulings 1–4) [2024] VSC 373 |
| Exploiting vulnerability | Unlawful detention, denial of a lawyer or third party, and placing the suspect in a highly vulnerable position. | Foster v The Queen (1993) 113 ALR 1 |
| Threats + inducements | A deal or witness protection is not oppressive alone — but coupled with threats of violence, or of a murder charge unless they comply, it is. | R v Ye Zhang [2000] NSWSC 1099 |
| Persistent questioning | Continuing after silence is invoked. Fact and degree — oppressive where the conduct objectively overbears the accused. | R v Maher [2011] VSCA 136 |
| Illegal conduct | Illegality can be oppressive and ground s 138 — but not all illegality is relevantly oppressive or influential. | R v Baladjam (No 48) [2008] NSWSC 1467 |
| Inhuman / degrading | Conduct incompatible with ICCPR rights; significant humiliation — refusing toilet access, unwarranted strip searches to break resolve. | R v JF ACTSC 104; R v Truong (1996) 86 A Crim R 188 |
| NOT VOID | The 'Mr Big' scenario — deception, but the accused believes he speaks freely to fellow criminals, not authorities. Pivot to ss 85 / 90 / 138. | Tofilau v The Queen (2007) 231 CLR 396 |
| M2 · s 85 Reliability — the circumstantial-reliability test | ||
| Do the circumstances make it unlikely the truth of the admission was adversely affected? Criminal only. Applies to an admission made to or in the presence of an investigating official performing investigative functions (s 85(1)(a)), or as a result of a person the accused knew or reasonably believed capable of influencing the prosecution (s 85(1)(b)). The admission is inadmissible unless the circumstances made it unlikely the truth was adversely affected (s 85(2)); Crown onus, BOP. s 85(3) factors: the maker's age, personality, education and any mental, intellectual or physical disability; and, for questioning, the nature and manner of the questions and any threat, promise or inducement. The judge does not decide whether the admission is true — only whether the circumstances were likely to cause a false confession (R v GP (2015) 35 NTLR 117: a DNA bluff produced a confession, police lied about parentage of a child, causing the accused to confess to having had sex with the complainant. Ultimately the confession was admissible — a bluff that DNA evidence is coming does not logically induce an innocent person to confess). → Gateway — investigating official / capable of influencing the prosecution: "what happened here?" at a scene counts; siege negotiation does not (R v Mclaughlan; R v Naa); covert operatives / wired cellmates are excluded (R v Truong; R v Donnelly; Tofilau — the UEL abandoned the "person in authority" test); a pretext-call complainant can qualify under s 85(1)(b) (Lieske). → Subjective vulnerability: schizophrenia behind a "superficially intact" presentation (R v Munday (No 1) [2016] VSC 26); botched interpreting or cultural misunderstanding, independent of police malice (R v Tang [2010] VSC 578; Bin Sulaeman [2013] NSWCCA 283). → Tactics: do not wait for misconduct — that is s 138. s 85 needs only circumstances of unreliability (exhaustion, intoxication, disability, interpreting), and attack in combination: questioning acceptable for a robust adult may readily produce a compliant false agreement from this accused. |
M3 · s 90 The residual fairness discretion
Would it be unfair to the accused to USE the admission? The court may refuse a prosecution admission if, having regard to the circumstances in which it was made, it would be unfair to use it (s 90) — the statutory Lee discretion. A safety net: run it after ss 84, 85 and 138. Onus on the accused (s 142). It targets use-unfairness at trial, not police discipline (Em v The Queen (2007) 232 CLR 67). Unfairness is highly fact-specific and not exhaustively defined. Threshold: the evidence must actually be an admission — a police interview tendered only for voice comparison is not, so s 90 has no work to do (Haddara v The Queen [2014] VSCA 100). Where s 85 was engaged and satisfied, reliability should generally not be reassessed under s 90.
s 90 — unfair use vs fair use¶
| Case | What happened | Result | Why |
|---|---|---|---|
| R v Swaffield (1998) 192 CLR 159 | Accused declined an interview on an arson; police then sent an undercover operative posing as being in trouble for the same arson. | UNFAIR | Police deliberately misled him to elicit the confession, circumventing the right to silence he had invoked [R V GP DIFFERENT BECAUSE GP SPOKE DURING ROI] |
| Pavitt v The Queen [2007] NSWCCA 88; R v Noakes | Police engender a false belief that what is said cannot be used — e.g. an affirmative holding out. | UNFAIR | Unfairness is multi-faceted; whether created intentionally or not, using the admission is unfair. |
| Em v The Queen (2007) 232 CLR 67 | After silence was invoked, police spoke to him in a park ("not as though we're going to slap the handcuffs on you") and secretly recorded it. | FAIR | Reliability not in question, and police never affirmatively said it could not be used against him. |
| Pavic v The Queen (1998) 192 CLR 159 | Released after a "no comment" interview; police wired his friend, who obtained a confession. | FAIR | A conversation between acquaintances, not a coercive interrogation — distinguished from Swaffield. |
| Koeleman | Bragged to a friend about the stabbing; friend arranged a meeting with a wired undercover officer. | FAIR | Statements reliable; the trickery produced no unfairness. |
| Clarke; Alhassan v The King [2024] VSCA 233 | 'Mr Big' — officers posed as a syndicate; the accused confessed to persuade 'Mr Big' to make evidence disappear. In Alhassan, the admission was volunteered. | FAIR | Police deception is not prima facie unfair; he confessed voluntarily, out of self-interest. No need to warn the suspect he is a target (Tofilau). |
The s 90 takeaway: trickery alone is not enough. Point to
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deliberate subversion of an invoked right to silence, or
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an affirmative misrepresentation about the accused's legal jeopardy.
The ROI and DREC — statutory gateways¶
M4 · Crimes Act The record of interview (ss 464A–464H)
Recorded? Cautioned? Rights afforded? Caution (s 464A(3)): before any questioning (other than name and address), the official must caution the person in custody. Recording (s 464H): the questioning and anything said must be audio/AV recorded; a pre-questioning admission must be recorded or its substance confirmed on tape (s 464H(1)(e)). Non-compliance renders the admission inadmissible — a rule, not a discretion — unless the Crown proves the circumstances are exceptional and justify reception (s 464H(2)). Distinct periods of questioning: where the admission is made in an un-taped episode (scene, divvy van, watch-house) followed by a taped one, ask whether they are one continuous or distinct periods — by proximity of place and time and the relationship between them (Pollard v The Queen (1992) 176 CLR 177). → Pre-interview rights: s 464C (friend / lawyer, out of hearing), s 464D (interpreter), s 464E (under-18 — independent person; breach routes via s 464H(1)(d) and is treated as fundamental), s 464F (consular). These carry no internal exclusionary clause — breach is a contravention routing to s 138. → Even if the Crown escapes: a successful s 464H(2) saving, or a taped confirmation, does not erase the antecedent breach — it remains a contravention enlivening s 138 and, for an admission, s 90.
M4A · CPA Div 7B DREC — the FV recorded statement
Made, served and admissible under Division 7B? A recorded statement (audiovisual, or exceptionally audio, of an FV complainant answering a trained officer's questions — s 387C) may be the complainant's evidence-in-chief (s 387E), admissible as if direct testimony (s 387F). Making (s 387G): - as soon as practicable; informed consent on the recording (s 387G(3)); - concluding attestation of truth; - audiovisual form (audio only in exceptional circumstances, s 387G(2)); - translation if not in English (s 387G(4)). Admissibility (s 387F(2)): complies with s 387G; served (s 387H); reasonable opportunity for an unrepresented accused to view/listen; and at the hearing the complainant identifies, attests and is available for cross-examination and re-examination. The court may order inadmissible parts edited out (s 387F(4)). Compliance does not immunise the contents — relevance, hearsay within the statement, s 137 and ss 135/138 still apply, and the complainant's cross-examination attracts the s 41 improper-questions duty.
Part 3.11 — the balancing provisions¶
M5 · ss 137 & 135 Prejudice — mandatory and general
Is probative value outweighed by the danger of unfair prejudice? s 137 (mandatory, criminal, prosecution evidence): the court must refuse if probative value is outweighed by the danger of unfair prejudice to the accused — mere outweighing, no residual discretion once the balance falls. s 135 (general): any party's evidence, where probative value is substantially outweighed by the danger of unfair prejudice, misleading or confusing, undue waste of time, or unnecessarily demeaning the deceased in a homicide proceeding. Probative value — taken at its highest, assuming the jury accepts it; credibility and reliability are not considered, save the limiting case of evidence no rational jury could accept (IMM). IMM governs Victoria — the earlier reliability approach in Dupas v The Queen (2012) 40 VR 182 no longer states the test. Assess in combination with the rest of the Crown case, not in isolation. Unfair prejudice — the risk the jury misuses the evidence: disproportionate weight, or an irrational, emotional response (Festa v The Queen (2001) 208 CLR 593; R v Dickman (2017) 261 CLR 601). It must be a danger judicial direction cannot cure — always plead the incurability point. Accused's onus (s 142). → Identification evidence: IMM permits regard to the circumstances in which the identification emerged — a fleeting sighting of a partly masked person in dim light lacks the value of an unhurried observation. Watch the "rogues' gallery" effect of photoboards and the displacement effect of prior social-media viewing. → Tendency / coincidence: post-R v Bauer (2018) 266 CLR 56, contamination, concoction or collusion goes to credibility for the jury, unless so great that no rational jury could accept it. Structure: s 55 → s 97 (significant probative value) → s 101 → ss 135/137 → s 192. → Choosing the provision: in a criminal trial the accused should lead with s 137 — s 135's "substantially outweighed" threshold weights admission.
M6 · ss 138–139 Improperly or illegally obtained evidence
Impropriety or contravention — and does the Crown justify admission? Stage 1: the accused proves, on the balance of probabilities (s 142), that the evidence was obtained improperly or in contravention of an Australian law, or in consequence of either — including the causal link. Stage 2: the onus shifts to the prosecution to persuade the court that the desirability of admitting outweighs the undesirability of admitting evidence obtained that way (Parker v Comptroller-General of Customs), weighing the non-exhaustive s 138(3) factors: probative value; importance; nature of the offence; gravity of the impropriety; whether deliberate or reckless; ICCPR inconsistency; other proceedings; and the difficulty of obtaining it lawfully. Leading authority — Kadir v The Queen (2020) 267 CLR 109: s 138 is not a "fruit of the poisonous tree" doctrine — attenuation of the causal chain is no barrier to engagement but favours admission; impropriety short of illegality is measured against minimum standards of acceptable police conduct (adopting Ridgeway v The Queen (1995) 184 CLR 19). Bunning v Cross is wholly displaced in Victoria (Haddara v The Queen [2014] VSCA 100) — citing it as an operative discretion is a currency error. → Deemed impropriety (s 138(2)): an admission during questioning is deemed improperly obtained where the questioner (with actual or imputed knowledge) did or omitted an act likely to impair substantially the ability to respond rationally, or made a false statement likely to cause an admission. → No caution (s 139): deems the evidence improperly obtained where a person under arrest (s 139(1)) — or questioned after the official formed a belief there was sufficient evidence (s 139(2)) — was not cautioned; the caution must be given or translated into a language spoken with reasonable fluency (s 139(3)). Then run s 138. → Charter breach: police conduct incompatible with a human right is unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and a contravention of an Australian law for s 138(1) (DPP v Kaba [2014] VSC 52 — single judge; note the level). Charter rights mirroring the ICCPR aggravate gravity.
s 138 — where the Crown failed vs succeeded¶
| Case | The impropriety | Result | Why |
|---|---|---|---|
| DPP v Marijancevic [2011] VSCA 355; (2011) 32 VR 440 | Police systematically failed to swear search-warrant affidavits, merely signing them. | EXCLUDED | Deliberate, knowingly illegal and systemic. Despite probative drug evidence and serious charges, gravity was high and compliance would have been easy. |
| Johnston (a pseudonym) v The King [2023] VSCA 49 | Entered on a safe custody warrant; within 5 minutes the child plainly wasn't there, yet police searched for nearly an hour, finding rape and drug evidence. | EXCLUDED | Deliberate, reckless, highly invasive breach of privacy; no disciplinary action taken — despite the evidence being critical. |
| Kadir v The Queen (2020) 267 CLR 109 — surveillance | Activists unlawfully filmed live baiting, contravening the Surveillance Devices Act 2007 (NSW). | EXCLUDED | Repeated, deliberate breach. Where illegality is deliberate, difficulty of lawful obtaining weighs against admission — no curial approval of vigilantism. |
| Kadir — warrant & admissions | RSPCA used the footage to lawfully obtain a search warrant, leading to further evidence and admissions. | ADMITTED | RSPCA acted lawfully as a regulator, without prior knowledge; the causal link was tenuous and probative value high. |
| Meade v The Queen [2015] VSCA 171 | Implied admissions during a general search warrant execution were not recorded. | ADMITTED | Police did not appreciate at the time that they were admissions — recording would have been wholly impracticable. Admissions Made by Meade: The Boots: When referencing his work boots, Mr Meade volunteered that he "didn't take them to Melbourne". The Clothing: When asked to identify the clothing he had worn on his trip to Victoria, he twice identified only some of the clothing, deliberately omitting other items (including the trousers he later admitted to his wife had been left "filthy" in the woods). The Fuel Receipts: He volunteered fuel receipts from his journey to Victoria but conspicuously failed to produce any fuel receipts from his return trip back to Adelaide. CoA said it was wholly impracticable for the police to have recorded these implied admissions: Lack of Contemporaneous Significance: At the time the statements were made during the search, the police officers did not appreciate their significance. The Nature of Implied Admissions: An implied admission often arises from an exculpatory denial or assertion of fact. It may not be possible to characterise a statement as an implied admission until well after it is made, when subsequent investigations reveal that the denial or assertion is actually false. Retrospective Understanding: As further information came to light, incriminating impact of his casual remarks could be understood. |
| R v Weaven (Ruling No 1) [2011] VSC 442 | 'Mr Big' scenario — deception and false statements to elicit a murder confession. | ADMITTED | Weinberg J: even if improper, the high public interest in a serious crime and the necessity of the technique outweighed the deception. |
M7 — Procedure: voir dire, pre-trial and appeal¶
The voir dire (s 189): preliminary questions — whether evidence should be admitted or used, or a witness is competent or compellable — are decided on the voir dire (s 189(1)), on the balance of probabilities (s 142(1)). For an admission, or s 138 material, the hearing must be in the jury's absence (s 189(2)), and the truth of the admission is disregarded unless the accused raises it (s 189(3)). The accused may give evidence on the voir dire with protection — s 128(10) does not apply (s 189(6)) — and voir dire evidence cannot be adduced at trial unless inconsistent with the witness's other evidence, or the witness has died (s 189(8)).
Pre-trial rulings & interlocutory appeal: admissibility may be determined pre-trial under s 199 CPA (even without oral hearing, s 200); the ruling binds the trial judge (ss 203–204) unless departure is not in the interests of justice — also the gateway for renewing a failed objection at trial. Interlocutory appeal lies only by leave (s 295(2)) and, for admissibility rulings, only on the trial judge's certification that exclusion would "eliminate or substantially weaken" the prosecution case (s 295(3)(a)) — a prosecution-framed threshold that makes defence challenges to admission rulings hard to certify. A s 137 ruling is reviewed for correctness, not on House v The King principles (Moore (a pseudonym) v The King [2024] HCA 30).
Onus & standard — consolidated¶
| Provision | Who bears it | Standard |
|---|---|---|
| s 84 (VOID conduct) | accused raises; prosecution must disprove influence | balance of probabilities (s 142) |
| s 85 (reliability) | accused raises; prosecution proves reliability of circumstances | balance of probabilities |
| s 90 (fairness) | accused | balance of probabilities |
| s 137 / s 135 | accused (s 137) / objecting party (s 135) | balance of probabilities |
| s 138 | accused proves impropriety + causal link; then prosecution justifies admission | balance of probabilities (both stages) |
| s 464H(2) saving | prosecution | balance of probabilities |
| All admissibility facts | as above | s 142(1); weigh importance and gravity — s 142(2), Briginshaw |
Provisions at a glance¶
| Provision | Effect |
|---|---|
| EA ss 55–57 | Relevance gateway; provisional admission where an anterior finding is reasonably open (s 57). |
| EA s 84 | Mandatory exclusion — admission influenced by violent/oppressive/inhuman/degrading conduct or threats. |
| EA s 85 | Criminal — admission inadmissible unless circumstances made it unlikely the truth was adversely affected. |
| EA s 86 | Unsigned document record of an oral admission inadmissible (oral evidence still open). |
| EA s 89 / s 90 | No adverse inference from silence (89); discretion to exclude an admission that is unfair to use (90). |
| EA s 135 / s 136 / s 137 | General discretion; limiting orders; mandatory exclusion of unfairly prejudicial prosecution evidence. |
| EA s 138 / s 139 | Improperly or illegally obtained evidence (two-stage); caution deeming provision. |
| EA s 142 / s 189 | Standard of proof for admissibility facts; the voir dire. |
| Crimes Act ss 464A–464H | Caution, custody safeguards (friend/lawyer, interpreter, minors, consular) and the recording requirement. |
| CPA ss 387C–387H | DREC — the family-violence recorded statement scheme. |
| CPA ss 199–204, 295 | Pre-trial determination, binding effect, and interlocutory appeal by leave and certification. |
| Charter s 38(1) | Conduct incompatible with a human right is unlawful — a contravention for s 138(1) (Kaba). |
Exam & practice discipline¶
• Run the spine in order: relevance → the engaged exclusionary rule (with its exception) → for admissions ss 84–90 → Part 3.11 → s 138. Where multiple gates catch one item (an unrecorded confession after an unlawful arrest: M1/M2 → M4 → M6), run them in spine order and say so — an exception must be found for each engaged rule.
• Do not argue reliability at relevance: reliability is IMM-prohibited territory until the s 137 balancing, and even there only in the limited IMM categories (chiefly manner of emergence in identification cases).
• Always plead the direction point: s 137 exclusion turns on the incurability of the prejudice, not its mere existence.
• Frame s 138 stage two as the Crown's burden: once impropriety is proved, exclusion follows unless the Crown justifies admission — the reverse of the common-law position.