Falkiner v The Queen

The appeal concerned the admission of certain evidence during a criminal trial. The appellant, Falkiner, sought to appeal his conviction on grounds relating to the admissibility of evidence. The appeal was heard by Peek and Parker JJ and David AJ.

The primary legal issue before the appellate court was whether the trial judge had erred in admitting certain evidence, specifically concerning the discretionary exclusion of prejudicial evidence under the *Christie* discretion. The court was required to determine if the evidence, though potentially admissible, carried a substantial prejudicial influence on the jury that outweighed its evidential value, and whether the trial judge should have exercised a discretion to exclude it. A further issue was whether the appellate court could exercise this discretion when no objection had been taken at trial.

The court rejected the ground of appeal relating to the discretionary exclusion of evidence. It held that the *Christie* discretion to exclude evidence where its probative value is outweighed by the risk of prejudice is typically exercised by the trial judge. As no objection was taken to the evidence at trial, and the trial judge was not asked to exercise this discretion, the appellate court could only intervene in the most exceptional circumstances. While it was arguable that the discretion *could* have been exercised in favour of the appellant at trial, it was not the only appropriate exercise of discretion, nor would a miscarriage of justice clearly occur if the discretion were not exercised on appeal. The court noted that the *Christie* discretion applies to evidence whose probative value is outweighed by the risk of prejudice.

The appeal was dismissed on this ground.