6.1 – General Power to exclude

Section 135 – General Discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)    be unfairly prejudicial to a party; or
(b)    be misleading or confusing; or
(c)    cause or result in undue waste of time

•    The purpose is to prevent admission of evidence, which has “dangers” associated with it.
•    The discretion involves a balancing exercise, which on the one hand the court must consider the probative value of the evidence.
•    On the other side of the balancing exercise are the factors in s135(a), (b) and (c).

Dictionary Pt 1 ‘Probative value’ definition   probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

•    In essence it requires an assessment of the extent of the evidence
•    In order for discretion to be invoked the probative value of the evidence must be “substantially outweighed” by one of the dangers in admitting the evidence.

(a)    Unfairly Prejudicial
•    The evidence may be used in a way which is “logically unconnected with the issues in the case”
•    It is unfairly prejudicial if there is a real risk that the jury may use the evidence in some unfair way

(b)    Misleading or confusing

(c)    Cause or result in undue waste of time
•    This discretion is directed to saving judicial resources

Ordukaya v Hicks [2000] NSWCCA 180

Facts: A statutory declaration by a 92-year old woman was held admissible under s64(2) because a doctor's report said she was too frail to attend Ct and thus it wasn't 'reasonably practicable' to call her as a witness to give oral evidence.

Held: The statutory declaration was admissible
•    S135 requires not just prejudice but unfair prejudice weighed against the probative value of the evidence
•    Admission of hearsay evidence under s64 carries some prejudice because the maker could not be cross-examined but did not make the evidence unfair to the point of outweighing the high probative value of the evidence in this case

Appears to decide that on its own, procedural unfairness will not amount to unfair prejudice
•    The inability to cross examine will go to the weight of the evidence

6.2 – Exclusion in criminal cases “unfair prejudice”

Section 137 – Prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger
of unfair prejudice to the defendant.

R v Lissoff [1999] NSWCCA 364
Facts: L was one of 3 defendants charged with inflicting GBH on C. Identification of L required DNA evidence. Defence challenged the integrity of this evidence on a number of pts and Trial Judge excluded evidence under s137 EA because of its complexity. Crown appealed.

Held: per Speigelman CJ, Newman and Sully JJ: Appeal upheld; Complexity is not sufficient for s137 therefore the evidence should not have been excluded
•    The question of fact for the jury to decide was no more complex or difficult than questions routinely left to juries
•    Juries frequently have to decide between conflicting scientific evidence
•    Moreover, the trial judge applied the wrong test in relation to s137
•    “The average jury, if properly assisted and directed, will do diligently and conscientiously what the law asks of it”
•    “There is nothing so extraordinary about the conflict in the evidence presented in this case which would justify the conclusion that a careful and sensible jury, properly directed as to the relevant law and as to the relevant evidence, could not decide in a reasoned and responsible way whether or not the Crown has demonstrated beyond reasonable doubt that the body of evidence supporting the Crown case should be preferred to the opposed body of evidence.”
•    There must be a real risk of unfair prejudice (the jury being swayed) not just a mere possibility (that the jury was swayed)

R v Dann [2000] NSWCCA 185
Facts: Dann was convicted of sexual assault of his 7 year old step-son   Dr Packer’s evidence was that the step-son had dilation of the anus which could be consistent with either constipation or sexual abuse  defence objected on the ground that evidence was ambivalent.
Held: Dr Packer’s evidence was capable of being used by the defence in support of a submission negating abuse. The unattractive nature of the subject matter of the doctor’s evidence did not make it prejudicial.
R v Clark [2001] NSWCCA 494
Facts: The appellant before a judge and jury on the count of murdering Lock. Evidence of his relationship with her was adduced by the prosecution. One witness gave oral evidence (hearsay) of a conversation she had with the deceased which tended to show the existence of a bad relationship.

Issue: Possible discretionary exclusion was considered, since Lock could not be cross-examined.

Held:
•    The impossibility of cross-examining cannot generally justify the exclusion of evidence (under s135) or by reason of finding unfair prejudice (s137), as to do so would undermine the hearsay exceptions to the Act.
•    Cross-examination of the deceased would not have assisted the appellant in an attempt to show that the relationship was sound
•    It was unnecessary in this case to conclude whether the inability to cross-examine can be prejudicial, because in this case the loss of opportunity to cross-examine did not make the evidence unfairly prejudicial.

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