Case Study: Southern Equities Corporation Ltd.

1177 Words 5 Pages
PRETLOVE: IMPROPERLY OBTAINED DOCUMENTS

In Southern Equities Corporation Ltd (In Liquidation) & Ors v Bond & Ors , the Court was asked to determine whether the tendering of transcript from a previous hearing that went to the credit of the defendants was an abuse of the court’s process and should not be allowed. Lander J, the presiding Judge, undertook a lengthy analysis of the legislative provisions that provide for the admission of documents. Lander J ultimately found that the court has a discretion to exclude documents that have been obtained through improper or illegal means, albeit it is a high test concerning the abuse of court process that must be satisfied to warrant the exclusion of otherwise admissible evidence.

Lander J considered
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Lander J found there to be four separate circumstances in which a court may be called upon to exercise a discretion to refuse to admit otherwise admissible evidence in criminal proceedings, including the Christie discretion, which is where the probative value of the evidence is outweighed by the prejudice to the accused, and the Bunning v Cross discretion where public policy dictates that the evidence should be excluded. The Bunning v Cross discretion is relevant here because the principle stands for the exclusion of evidence in cases where the evidence has been obtained by improper or unlawful means. The third discretion, from R v Swaffield, which concerns confessional evidence, and finally the fourth discretion regarding non-confessional evidence that would be unfair to the accused so as to deny the accused a fair trial, per Driscoll v The …show more content…
His Honour cited Deane J in Pollard v The Queen , stating that the Court should not be “demeaned by the uncontrolled use of the fruits of illegality in the judicial process.” Lander J continued that the discretion is rooted in the need to prevent the abuse of process, and that the Court is alive to the issue, as well as equipped to refuse a party that abuses its processes and not profit by it. His Honour stated that “[i]t is essential for the maintenance of the administration of justice that the Court’s processes are not abused and, if they are, the abusing party does not profit by the

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