Proctor : August 2017
34 PROCTOR | August 2017 Discretion to exclude evidence – under s98 Evidence Act Section 98 of the Evidence Act 1977 (Qld) (Evidence Act) empowers a court to reject evidence when that evidence would otherwise be admissible by virtue of Part 6 of the Evidence Act. On a literal reading of s98, the power to exclude is both expansive and defined vaguely. The provision states: “98 Rejection of evidence (1) The court may in its discretion reject any statement or representation notwithstanding that the requirements of [Part 6] are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted. (2) This section does not affect the admissibility of any evidence otherwise than by virtue of [Part 6].” Courts have considered s98 and its New South Wales counterpart (which was repealed by the Evidence Act 1995 (NSW)). The overall effect of the authorities is that the s98 discretion to exclude is applied less readily than its language might suggest. When can the s98 discretion be invoked? Section 98 can operate only in respect of material which is sought to be admitted pursuant to Part 6 of the Evidence Act. Part 6 allows for the admission of documentary evidence (such as written or taped statements) in certain circumstances and represents a significant exception to the rule against hearsay evidence. Section 92 is the most commonly cited exception which is usually relied on in civil proceedings in relation to business records provided certain criteria in that section are met. Section 98 has no operation when material is admissible both under Part 6 and on some separate basis, provided the other basis is actually relied upon. While s98 is available in criminal proceedings, its role is particularly important in civil actions for two reasons: Firstly, the scope of material admissible under Part 6 is broader in civil proceedings. Secondly, s130 of the Evidence Act already grants (or rather, preserves) a general power to exclude evidence in criminal proceedings, at least when that evidence is unfavourable to the accused. Probative value and prejudicial effect By its terms, s98 allows for the exclusion of evidence the admission of which would appear to be inexpedient to the interests of justice. That formulation is very wide. It also bears at least a passing resemblance to the test for excluding evidence (in criminal proceedings only) pursuant to the principle referred to in s130 of the Evidence Act. Section 130 states: “130 Rejection of evidence in criminal proceedings Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.” The provision does no more than preserve an existing common law discretion to exclude evidence in criminal proceedings. The relevant common law principle was recognised1 in the English case of R v Christie  AC 545. In R v Hasler, ex parte Attorney-General  1 Qd R 239, Thomas J stated that the court’s discretion was activated only when the evidence had “relatively slight probative value and the prejudicial effect of its admission would be substantial”. 2 Consideration of s98 occurs against this backdrop. Courts have recognised that the discretion to exclude under s98 and s130 can involve similar considerations.3 In particular, it has been observed that the probative value of certain material under Part 6 of the Evidence Act—particularly an out-of-court statement made pursuant to s93A—will “in almost all cases be very high” and that therefore it is most unlikely that such a statement would ever be excluded on the basis that its prejudicial effect exceeds its probative value.4 The position is likely to be different, however, when the material is tainted by a lack of reliability. Reliability of the evidence In applying s98, courts will have regard to the reliability of the evidence in question. If evidence is unreliable, the discretion to exclude may be activated; the evidence need not be “demonstrably” unreliable.5 ‘Reliability’ can have either a narrow or a broad meaning. When used narrowly, reliability is concerned with the inherent reliability of the content of the evidence. On a broad formulation, reliability goes to extrinsic matters such as the circumstances under which the evidence was obtained.