Assessing Probative Value Against Unfair Prejudice – Discretionary Exclusions

Abstract:     
The uniform evidence legislation in force in the Commonwealth, NSW, the ACT, Tasmania and Norfolk Island contains provisions that permit a judge to exclude otherwise admissible evidence. This article focuses on the discretionary exclusions in ss135 and 137 of the Evidence Acts (Acts). Other discretionary exclusions in the Acts include s90 (the discretion to exclude admissions) and s138 (confers discretion on a court to admit improperly or illegally obtained evidence). The purpose of this article is to consider how a trial judge can assess ‘probative value’ against ‘unfair prejudice’ for the purpose of exercising discretion to exclude evidence under ss135 or 137. The uniform evidence legislation does not explain how such assessments should be made, nor did the recent inquiry into the Acts by the Australian Law Reform Commission (ALRC) recommend legislative clarification of these terms. Instead, case law has interpreted these important statutory terms. The result is that the operation of the discretionary exclusions are restricted by the ability of the judge to assess the probative value of evidence against the danger of the evidence causing unfair prejudice.

Number of Pages in PDF File: 8

Keywords: Judicial Discretion to exclude evidence, assessment of probative value, unfair prejudice, Evidence Act 1995 (NSW) and (Cth) sections 135 and137

JEL Classification: K10, K30

Accepted Paper Series