Resolving the application of the Christie discretion in the uniform evidence legislation

Article

Hemming, Andrew. 2014. "Resolving the application of the Christie discretion in the uniform evidence legislation." Federal Law Review. 42 (3), pp. 539-558.
Article Title

Resolving the application of the Christie discretion in the uniform evidence legislation

ERA Journal ID33318
Article CategoryArticle
Authors
AuthorHemming, Andrew
Journal TitleFederal Law Review
Journal Citation42 (3), pp. 539-558
Number of Pages20
Year2014
Place of PublicationCanberra, Australia
ISSN0067-205X
1444-6928
Web Address (URL)http://apo.org.au/node/53513
Abstract

The application of s137 of the uniform evidence legislation, which essentially restates the Christie discretion, has been thrown into confusion with the Supreme Courts of New South Wales and Victoria taking a restrictive and expansive interpretation respectively of the meaning of 'probative value' for the purpose of the weighting exercise between probative value and unfair prejudice. Definitive clarification of such an important and well known evidential principle, which could reasonably have been previously regarded as settled law, will most likely be postponed until a suitable case is heard by the High Court. This article seeks to anticipate such a judicial resolution of the application of s137, by applying well-understood principles of statutory interpretation, to argue in favour of the Victorian expansive approach to the meaning of 'probative value' in the uniform evidence legislation.

KeywordsChristie discretion; s137; Australia; uniform evidence legislation; appellate courts; judgements
ANZSRC Field of Research 2020480504. Legal institutions (incl. courts and justice systems)
480410. Legal theory, jurisprudence and legal interpretation
480502. Civil procedure
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Byline AffiliationsSchool of Law and Justice
Institution of OriginUniversity of Southern Queensland
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