Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

This site is no substitute for legal advice from an Australian lawyer. If you have a legal problem, it's great that you are doing a bit of research, but go consult a professional.


136. General discretion to limit use of evidence

136. General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might-

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

One example of the discretion to restrict the use of evidence can be found in Tasmania v Seabourne [2010] TASSC 35. There, the trial judge prohibited the video of a recorded interview with the accused, after objecton was made to the accused being shown in prison garb and wearing handcuffs. The audio recording was played for the jury instead.

Attempts to use s 136 to limit the use of admissible evidence only to the purpose for which it was admitted is inconsistent with the intent of the UEA to (where possible) avoid having to create the kinds of artificial legal distinctions that the common law required of triers of fact. The High Court in Papakosmas v R (1999) 196 CLR 297 warned strongly against judicial interventions of this sort.


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