2. Residual discretion to refuse admission

2. Residual discretion to refuse admission

Trial judge always has a single, general residual discretion to exclude admissible evidence if it jeopardizes the defendant’s right to fair trial. To ensure a fair trial for the accused, the court will exclude admissible evidence whose reception would compromise these principles: 

• No man is to be compelled to incriminate himself; his right of silence should be safeguarded
• Evidence’s prejudicial effect outweighs probative value

Prejudice is not related to the tendency of evidence to incriminate the accused, but rather to the risk that the impugned evidence may be improperly used by the jury and divert the fact-finding process by placing undue weight on the evidence. 

Where confession is obtained in breach of the Rules and Directions for the Questioning of Suspects and the Taking of Statements, it is a matter to be considered by the court in deciding whether to exercise its discretion to exclude.