In Victoria, the common law discretion to exclude evidence on the ground of unfairness to the accused survives the Evidence Act 2008 (Vic) and is not confined to confessional evidence or unfairly procured evidence (per the majority of Redlich and Weinberg JJA). This is contrary to the position in other uniform evidence law jurisdictions. Section 90 of the Evidence Act 2008 (Vic) applies only to 'admissions' and cannot be invoked to exclude evidence tendered for a non-hearsay purpose such as voice comparison. The question of whether Chapter 3 of the Evidence Act is a code remains contested, with the majority holding it is not and Priest JA holding it is.
The full text is available to signed-in members, including the 54 later cases that cite this judgment.
7 of the 54 citing cases carry a classified treatment. How each court treated it is available to signed-in members.