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Writer's pictureGeoff Harrison

Section 137 - Exclusion of Prejudicial Evidence


Prejudicial evidence, s137 Evidence Act, Exclusion of Evidence, Best Sydney Barrister, Best Criminal Barrister, Best Criminal Lawyer, Best Criminal Lawyer

Published by Geoff Harrison | 8 November 2024


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. As noted by Adams J in Parkes at [73]:


“Probative value” is defined in the Dictionary to the Evidence Act as “[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority held that the assessment of probative value for the purposes of s 137 of the Evidence Act requires that the evidence be taken at its highest, without considering credibility or reliability (at [44], [52]). Nor can the existence of available competing inferences from the evidence play any part in the assessment of probative value for the purpose of s 137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at [196]; R v Tortell (No 5) [2019] NSWSC 1665 at [33].


Although the term “unfair prejudice” is not defined in the Dictionary, it has been held that the danger is of prejudice that is unfair in the context of an accused person’s right to a fair trial, meaning the risk that the evidence would be misused by the jury in some unfair way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at [73].


Other Sources:

Cases:


Extracted Legislation:


EVIDENCE ACT 1995 - SECT 137

Exclusion of 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.

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