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University of Technology SydneyLAW 70109 1) Discuss the main differences between the discretionary and mandatory exclusons to limit or exclude the use of the evidence in ss 135 - 139

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University of Technology SydneyLAW 70109

1) Discuss the main differences between the discretionary and mandatory exclusons to limit or exclude the use of the evidence in ss 135 - 139. How does the Courts decide what is 'unfair' about 'unfair' prejudice?

2. In practical terms, how can probative value be weighed against prejudicial effect? Consider and explain the reasoning on this issue of the CCA in Shamouil (2006) and the HCA majority in IMM v The Queen (2016).
3. Discuss the operation and the potential difficulties and effectiveness of judicial wa rnings in ss 165 and 165B.
4. As Defence Counsel in Max’s Wounding case, you have called DNA evidence in relation to some skin samples that were taken from a broken glass that was found near the scene of the crime. The expert evidence that your Witness, Prof. Stains, gives in relation to the statistical interpretation of the DNA profile taken from the broken glass, is very convoluted. In her evidence, Prof. Stains talks about how she undertook the DNA profiling assessment and includes some very detailed mathematical explanations of the statistical models she applied. The Crown has made an application to the Court to have this evidence excluded On what basis could this application be made? What requirements would need to be satisfied before the Judge would make such a ruling.

*** It should be noted that Prof. Stains is a well-known microbiologist who has worked for the NSW Division of Analytical Laboratories for 20 years. On that basis, it is safe to assume that she has satisfied the requirements of s79 EA.

5. Unbeknown to his Supervisor, Senior Constable Plod has been conducting an undercover surveillance of the Hotel in which Max allegedly wounded his brother-in- law, Joe, with a broken glass. The reason that Senior Constable Plod was conducting this surveillance was that he had become ‘sick and tired of all the cocaine dealing that was going on in his patch and he just wanted to try and put an end to it.’

As part of his surveillance efforts, Plod had set up a small camcorder in a pot plaint, near the main bar of the Hotel. As luck would have it, the camcorder captured footage of a very drunk Max breaking his glass on the edge of the bar and then thrusting into Joe’s face. Senior Constable Plod passed the footage to the Prosecutor, who now intends to adduce the footage in support of her case against Max .Can the Prosecutor adduce this evidence, if so how? On what basis could you, as Defence Counsel, object to the footage? How will the Court deal with such evidence?