› Unfair prejudice to the defendant — scope of ss 101 and 137
Evidence
› Privilege
› Self-incrimination — s 128(10) — abolition of common law privilege
Criminal law
› Accusatorial system
› Right to silence — forensic decisions — dilemma of concurrent proceedings
Quick Take
1The words 'the danger of unfair prejudice to the defendant' in ss 101 and 137 of the Evidence (National Uniform Legislation) Act 2011 (NT) refer only to prejudice arising in and of the proceeding in which the evidence is adduced by the prosecutor, and are not capable of encompassing prejudice to the accused in other criminal proceedings, whether existing or potential.
2The mere fact that admission of tendency evidence comprising uncharged criminal conduct committed in another jurisdiction may bear on an accused's decision whether to give evidence, or may make that decision more difficult because any evidence given may be used against the accused in other criminal proceedings, does not constitute 'unfair prejudice' within ss 101 and 137; the accused retains a real choice and the structural protection of a stay application in the other jurisdiction.
3No common law privilege against self-incrimination survives for evidence falling within s 128(10) of the Evidence (National Uniform Legislation) Act 2011 (NT); following Cornwell v The Queen, the privilege is abolished for evidence by a defendant about acts or states of mind that are facts in issue, including facts from which those matters can be inferred.
