Driscoll v R [1977] HCA 43| 10 August 1977

ON 10 AUGUST 1977, the High Court of Australia delivered Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 (10 August 1977).


The court allowed an appeal of a murder conviction and ordered a retrial, holding that the irregularities in the admission of certain technically admissible evidence caused a miscarriage of justice.

Evidence of the discovery at the accused’s residence of a number of firearms and photographs which were not related to the alleged murder was held to be not probative and therefore inadmissible. The court held that the admission of such evidence could not be defended on “the principle of completeness” (at [533]).

Likewise, evidence of an unrelated incident concerning the use of a firearm was held to be inadmissible for the same reasons (at [535]).

An unsigned written record of interview that was not adopted by the accused (otherwise know as a “police verbal”) was held to be inadmissible, though it could be used to refresh the memories of the police officers who performed the interview(at [541]). The court acknowledged that unsigned records might be fabricated.

A court has a discretion to refuse to receive evidence that would otherwise be admissible on the grounds of unfairness, that is, when the evidence is highly prejudicial but of little value or weight (at [541]). This discretion is general and not limited to evidence of confessions.


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