Why do we exclude evidence? • General principles: i. Reliability principle: Quality of decision is determined by the quality of the evidence that goes before the trier of fact – exclude evidence that is unreliable (e.g. hearsay, because the evidence cannot be tested in cross-examination); ii. Libertarian/Protective principle: Evidence excluded to redress potential unfairness in a contest between an individual and the State (e.g. privilege against self-incrimination); and iii. Disciplinary principle: Discretion to exclude illegally obtained evidence (the court will not eat the fruit of the poisoned tree). Evidence Act 2008 (Vic) • Applies to all proceedings in a Victorian court (s 4). • ‘Victorian court’ means “(a) the Supreme Court; or (b) any other court created by Pmt–– and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence” (s 3). • The Act is not a code. • Rules and principles of common law and equity (s 9) as well as the courts’ general powers (s 11) continue to apply, except to the extent the Act provides otherwise expressly or by necessary intendment. • There is some authority that Chapter 3 (admissibility) effectively operates as a code; abrogating the common law (McNeill v R). See s 56: “except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding” – ie, it is only admissible if the Act provides.