Exclusions pursuant to ss 135 and 137

16.6 Section 135 of the uniform Evidence Acts provides that in civil and criminal proceedings:

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.

16.7 Section 137 provides that, 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.

16.8 The discretion to exclude evidence on the grounds that it is misleading, confusing or unduly wasteful of the court’s time derives from the common law power to exclude evidence on the grounds of legal relevance, known as the ‘relevance discretion’.^[7] The discretion to exclude evidence where its probative value is outweighed by the risk of unfair prejudice derives from the common law Christie^[8]discretion, which enables the trial judge in criminal trials to exclude evidence which is likely to produce incorrect verdicts by misleading or prejudicing the jury.^[9]

16.9 Although it is clear from the wording of the provisions that the court may (or must) exclude evidence on these grounds of its own motion, in practice the party seeking exclusion bears the onus of proof in relation to the grounds of exclusion.^[10]

General discretion to exclude evidence

Relevance and the discretion to exclude

16.10 Both at common law and under the uniform Evidence Acts, relevance is a fundamental requirement for admissibility: evidence that is relevant to a fact in issue is admissible, subject to any other rule of evidence; evidence that is not relevant to a fact in issue is inadmissible.^[11]

16.11 At common law, the distinction is drawn between ‘logical’ relevance (which requires only that the evidence is capable of affecting, directly or indirectly, the probability of the existence of a fact in issue) and ‘legal’ relevance (which involves additional considerations such as the probative value of the evidence, the likelihood of the evidence misleading the jury, and other factors such as time and cost).^[12] Hence the requirement of legal relevance may be used to exclude evidence of minimal probative value or evidence which might be misleading, unfairly prejudicial,^[13] or unduly wasteful of the court’s time.^[14]

16.12 In ALRC 26, the common law notion of ‘legal relevance’ was criticised on the ground that it conceals the policy considerations underpinning exclusion.^[15] Hence the ALRC proposed adopting the test of logical relevance, in combination with the provision subsequently enacted as s 135. It stated that the proposed approach

articulates the mental processes inherent in existing law. This is done by two provisions—one defining relevance in terms of being capable of affecting the assessment of the probabilities and the other spelling out in a judicial discretion the policy considerations, presently concealed, which lie behind any decision on the relevance of evidence.^[16]

16.13 In accordance with the ALRC recommendation, s 55 of the uniform Evidence Acts provides that evidence will be relevant where it ‘could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.^[17] By the adoption of the broad notion of logical relevance and the enactment of a discretion to exclude evidence on grounds reflecting common law legal relevance, the Acts therefore draw a deliberate distinction between the factual and policy questions involved in determining admissibility.

Probative value

16.14 The uniform Evidence Acts define ‘probative value’ as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. This is similar to the definition of relevance in s 55, which provides that relevant evidence is ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings’. Therefore, probative value is assessed at least in part by reference to the degree of relevance of a piece of evidence to a particular fact in issue.^[18]

16.15 It is noted in Chapter 3 that the factors involved in determining probative value will vary depending on the type of evidence in question and the context in which it is sought to be adduced. For example, the factors relevant to the probative value of credibility evidence will differ from those relevant to the probative value of hearsay evidence.^[19] Further, where there is a paucity of evidence on a relevant issue, the probative value of the evidence in that context is likely to be higher than it otherwise would be.^[20] Hence, probative value has been described as a ‘floating standard’, its content being dependent on legal and factual context.^[21]

Credibility and reliability of evidence

16.16 Pursuant to s 56 of the uniform Evidence Acts, relevance is determined on the assumption that the evidence will be accepted by the tribunal of fact.^[22] A comparison of the Acts’ definitions of relevance and probative value, with the notable absence of the words ‘if it were accepted’ from the latter, indicates that an assessment of probative value is not necessarily predicated on the assumption that the evidence will be accepted.^[23] The question is open as to whether probative value is determined solely on the basis of the degree of relevance or whether the court is permitted to consider the credibility and reliability of the evidence. This issue has arisen mostly in the context of jury trials, and hence the relevant question has been whether the judge may consider whether the jury should accept the evidence.

16.17 Authorities have been divided on this issue. The more restrictive view is illustrated in the following statement by Hunt CJ at CL in R v Carusi:

The power of the trial judge to exclude evidence … does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect.^[24]

16.18 In Adam v The Queen, Gaudron J also expressed the view (in obiter dicta) that an assessment of probative value is made on the degree of relevance, reasoning that as a matter of logic:

The omission from the dictionary definition of ‘probative value’ of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition.^[25]

16.19 However, in Papakosmas v The Queen, McHugh J took the opposite view, stating that ‘an assessment of probative value necessarily involves considerations of reliability’.^[26] His Honour so concluded on two bases: first, as a matter of statutory interpretation, the absence of the words ‘if it were accepted’ must be significant; and secondly, the rationale underpinning the ALRC recommendation to adopt logical (as opposed to legal) relevance as the initial threshold for admissibility was to make evident the policy considerations (such as procedural fairness and reliability) underpinning the decision to admit or exclude particular evidence. His Honour considered that such policy considerations were therefore matters intended to be dealt with by ss 135–137.^[27]

16.20 In R v Rahme,Hulme J supported the view expressed by McHugh J, stating that it is inconsistent with the general canons of construction to treat the omission of the words ‘if it were accepted’ as insignificant.^[28] His Honour reasoned further that where a witness’ credibility is in doubt, this will affect the question of whether his or her evidence could rationally affect the probability of the existence of any fact in issue.

The need to consider the ‘extent’ in the context of ‘rationally affect’ to my mind argues for an assessment of the credibility of the author and the likelihood of the evidence being accepted.^[29]

16.21 On the other hand, it can be argued that factors affecting the reliability or credibility of evidence constitute a legitimate ground for exclusion where the court considers that the tribunal of fact, with the benefit of appropriate directions, may misuse or overestimate the weight of the evidence. This view was supported by Simpson J in R v Cook:

There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury … The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice.^[30]

16.22 For a discussion of the interrelationship between probative value and unfair prejudice, see Chapter 3.

Unfair prejudice

16.23 Unfair prejudice forms a ground for exclusion or limitation pursuant to ss 135, 136 and 137 of the uniform Evidence Acts. Although its application will differ depending on the context, its meaning is the same in each of these sections.^[31]

16.24 The Acts provide no guidance as to the meaning of ‘unfair prejudice’. However, as noted earlier in the chapter, unfair prejudice establishes the basis for exclusion pursuant to the Christie discretion at common law.^[32] The Interim Report in the previous Evidence inquiry indicates that the statutory concept carries a definition similar to its common law counterpart.

By risk of unfair prejudice is meant the danger that the fact finder may use the evidence to make a decision on an improper, perhaps emotional basis, ie on a basis logically unconnected with the issues in the case. Thus the evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decisions on something other than the established proposition of the case. Similarly, on hearing the evidence the fact-finder would be satisfied with a lower degree of probability than would otherwise be required. ^[33]

16.25 While the common law may provide some guidance as to its meaning, the statutory concept must be applied in light of the policy changes effected by the uniform Evidence Acts.

16.26 There is consensus in the authorities that evidence will not be unfairly prejudicial simply because it damages the defence’s case^[34] or because it has low probative value.^[35] Evidence will be prejudicial if it tends to prove the opponent’s case, but will not be unfairly prejudicial unless there is some potential for misuse by the tribunal of fact. As illustrated in the following discussion regarding procedural considerations, evidence will not be unfairly prejudicial for the purposes of Part 3.11 simply because it would not have been admissible at common law.

Unfair prejudice arising from procedural considerations

16.27 In light of the fact that the uniform Evidence Acts have relaxed the rules of admissibility, particularly in the extension of the exceptions to the hearsay rule where the maker of a hearsay representation is unavailable for cross-examination, it has been a matter of contention as to whether unfair prejudice can arise from procedural considerations. This issue was not explicitly addressed in the previous Evidence inquiry and authorities are divided on the issue. The more restrictive view, that unfair prejudice relates solely to the misuse of evidence by a tribunal of fact, was favoured by McHugh J in Papakosmas v The Queen,who stated:

Some recent decisions suggest that the term ‘unfair prejudice’ may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act 1995 … I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of ‘prejudice’ in a context of rejecting evidence for discretionary reasons … [ss 135, 136 and 137] confer no authority to emasculate provisions in the Act to make them conform with common law notions of relevance or admissibility.^[36]

16.28 Prior to Papakosmas, courts appeared to proceed upon the assumption that unfair prejudice was not limited to misuse of evidence by a tribunal of fact and could encompass procedural disadvantages. For example, in Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike,^[37] evidence of a transcript of a bankrupt otherwise admissible pursuant to s 63 (an exception to the hearsay rule in civil proceedings where the maker is unavailable) was excluded pursuant to s 135(a) on the basis that the opposing party was unable to cross-examine the declarant on a crucial issue in the litigation. In Commonwealth v McLean,^[38] hearsay evidence otherwise admissible pursuant to s 64 (an exception to the hearsay rule in civil proceedings where the maker is available) was excluded pursuant to s 135(a) on the basis that other evidentiary rulings in the case prevented the opposing party from properly challenging the reliability of the evidence.

16.29 Subsequent to the caution issued by McHugh J in Papakosmas,^[39] the New South Wales Court of Appeal considered the issue in Ordukaya v Hicks.^[40] The trial judge had found that it was not reasonably practicable to call the 92 year old defendant to give evidence and hence admitted into evidence a statutory declaration made by the defendant pursuant to s 64. The plaintiff sought unsuccessfully to have the evidence excluded pursuant to s 135(a) and subsequently appealed on the ground that the trial judge ought to have exercised the discretion as the denial of the opportunity to cross-examine the maker of the statement was unfairly prejudicial.

16.30 The majority declined to exercise the discretion to exclude the evidence, stating that the removal of the hearsay rule as an obstacle to admitting particular evidence will necessarily be prejudicial to the opposing party, but that this will not necessarily create prejudice which is unfair to the point that it outweighs the probative value of the evidence.^[41] The majority therefore concluded that the mere inability to cross-examine the maker of a hearsay statement does not justify exclusion of the evidence. However, it held that the inability to cross-examine is a matter which can be taken into account by the trial judge in assessing the weight to be given to such evidence.^[42] On the reasoning of the court in Ordukaya, evidence is more likely to be excluded on this ground where the tribunal of fact is a jury, as the question arises whether the jury will be able to assess correctly the weight of the evidence in the absence of testing by cross-examination.

16.31 The approach adopted by the majority in Ordukaya was cited with approval in R v Suteski, where Wood CJ at CL stated:

I see no reason why the inability … to cross-examine … should not have been relevant for s 135 and s 137 of the Evidence Act. However, the bare fact that a defendant cannot cross-examine a witness is not necessarily decisive of the issue which arises in relation to these provisions … The decisions mentioned clearly depend upon their particular facts, that is, upon the character of the evidence involved and upon the nature or strength of the potential prejudice to the defendant. Each case, in my view, needs to be examined individually by reference to the well understood balancing exercise.^[43]

16.32 In Roach v Page (No 11),^[44] Sperling J considered that the inability to test the truth of a representation is a legitimate ground for excluding or limiting the use of evidence. However, whether this fact will result in limitation or exclusion in a particular case depends on the basis upon which the hearsay rule did not apply. Where hearsay evidence has been admitted pursuant to an exception to the hearsay rule because of the unavailability of the maker, there are ‘special reasons’ for not excluding or limiting the use of the evidence on that ground.^[45] Conversely, where the maker of the hearsay representation is available to give evidence and has not been called, this is a legitimate consideration in favour of finding that there has been unfair prejudice.^[46]

Warnings as to unreliability and limiting directions to the jury

16.33 Although they are placed in a separate Part of the Acts, the warning provisions in s 165 of the uniform Evidence Acts are linked to the exclusionary provisions in ss 135–137, as they share the goal of reducing the risks of misuse or mis-estimation of the probative value of the evidence by the tribunal of fact.^[47]

16.34 Authorities have generally accepted that warnings and directions to the jury about the permissible uses of evidence or the potential unreliability of evidence can operate to reduce the risk of unfair prejudice. Accordingly, it has been held that the potentially mitigating effects of a warning or limiting direction should be taken into account when the court is considering whether to exclude or limit the use of evidence pursuant to ss 135, 136 or 137.^[48]

16.35 The Commissions note in Chapter 18 that there is some doubt as to the effectiveness of warnings and limiting directions to the jury. It is therefore necessary to interrogate the assumptions about jury behaviour underpinning these aspects of the law in light of empirical and psychological research. See Chapter 18 for a more detailed discussion of this issue.

Exclusion of unfairly prejudicial evidence in criminal proceedings

Relationship between ss 135 and 137

16.36 Sections 135 and 137 both require the court to balance the probative value of evidence with any unfair prejudice that may arise from the admission of that evidence. However, there are important differences between the two sections. First, s 137 is a mandatory exclusion rule, whereas s 135 provides the judge with a discretion to exclude evidence. Despite the fact that s 137 is contained in Part 3.11 of the uniform Evidence Acts, entitled ‘Discretions to exclude evidence’, the mandatory status of s 137 has been acknowledged in the higher courts. In R v Blick, Sheller JA observed:

When an application is made by a defendant pursuant to s 137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion … Even so … there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected.^[49]

16.37 The term ‘discretions’ is often used by the courts as shorthand to refer to the cluster of provisions in Part 3.11 of the uniform Evidence Acts, including the mandatory exclusion in s 137. This is, in part, a reflection of the terminology employed at common law (the equivalent exclusions are often labelled ‘residual discretions’). However, more importantly, it is a reflection of the fact that s 137 is akin to a discretion. It involves an exercise of judgment as to the application of broad principles, to be exercised in relation to all types of evidence. It is also of note that the common law Christie ‘discretion’ also mandates exclusion of evidence once it has been determined that the evidence is more prejudicial than probative.^[50]

16.38 The difference in wording between the two sections (s 135 requires that the unfair prejudice substantially outweigh the probative value, whereas s 137 requires only that the former outweigh the latter) also indicates that there is a heavier onus on the party seeking exclusion under s 135 than under s 137. Further, s 137 appears to have a wider application: s 135 talks of ‘the evidence’ being ‘unfairly prejudicial’, whereas s 137 talks more generally of ‘danger of unfair prejudice’. It has been held that this difference in wording means that, where s 137 is being considered, an assessment of unfair prejudice can take into account the likely prejudicial impact of any evidence the opponent may seek to adduce in order to challenge or explain the initial piece of evidence.^[51]

16.39 As noted above, s 135 applies to evidence adduced by both parties in civil and criminal proceedings, and provides a discretion to exclude evidence which at common law might have been excluded by the legal relevance threshold. In contrast, s 137 applies only in criminal cases to evidence adduced by the prosecution and mandates the exclusion of evidence in order to avoid the risk of wrongful convictions. That a party seeking exclusion pursuant to s 135 should bear a heavier onus than an accused seeking exclusion of evidence pursuant to s 137 is consonant with the policies underpinning the uniform Evidence Acts. Parties should generally be able to produce the probative evidence available to them,^[52] however the courts should be particularly careful when considering evidence that might prejudice defendants in criminal trials.^[53] However, it is important to note that the tests are weighted neither in favour of nor against exclusion. As stated in ALRC 26, ‘the trial judge should balance probative value and the danger of prejudice without any preconceptions’.^[54]

The Commissions’ view

Definition of terms in ss 135 and 137

16.40 In IP 28, opinion was sought as to whether the grounds for exclusion in ss 135 and 137 require further definition.^[55]

16.41 Some concern is expressed that the term ‘unfair prejudice’ is unclear.^[56] The Office of the Director of Public Prosecutions (NSW) (NSW DPP) submits:

[T]here is no objection to including a definition of ‘unfair prejudice’ reflecting the more restrictive view of the meaning of the term reflected in the judgement of McHugh J in Papakosmas v The Queen; and by making it clear that the term excludes procedural unfairness.^[57]

16.42 In contrast, other submissions consider that it is unnecessary and potentially counter-productive to attempt legislative definition of the grounds for exclusion. The NSW Young Lawyers Civil Litigation Committee submits that

no such definition is required, as these concepts have been long employed at common law and are well understood. Attempting to define the circumstances would be difficult, would probably require a catch-all phrase in any event, and would unnecessarily clutter the Act.^[58]

16.43 The New South Wales Public Defenders Office (NSW PDO) submits that it will not be productive to define these terms, and that any attempt to define them is likely to narrow their meaning.^[59] Similarly, the Law Society of New South Wales submits that the term unfair prejudice ‘needs to be a broadly stated principle so as to cover the majority of cases and possible factual circumstances arising’.^[60]

16.44 In DP 69, the Commissions concluded that the grounds of exclusion in ss 135 and 137 do not require legislative definition, principally on the basis that doing so carries the risk of narrowing their meaning, thereby fettering the application of the sections.^[61]

16.45 The Commissions acknowledge that there has been uncertainty as to whether unfair prejudice can arise from procedural considerations. As noted above, one of the objects of these provisions is to prevent the tribunal of fact from being exposed to evidence that is likely to mislead it or play upon its emotions or prejudices. In the Interim Report for the previous Evidence inquiry, the ALRC referred not only to unfair prejudice arising from evidence which might inflame emotions, but also to unfair prejudice resulting from mis-estimation by the fact-finder of the weight to be given to particular evidence.^[62] An inability to test the reliability of evidence may carry with it the danger of such mis-estimation. It is therefore consistent with the policy basis for this discretion that the inability to test evidence may constitute a legitimate ground for its exclusion where this will affect the ability of the fact-finder to assess rationally the weight of the evidence.

16.46 Whether the inability to test the evidence will in fact give rise to unfair prejudice will depend on a number of factors, including: the basis on which the hearsay rule did not apply;^[63] the possible significance of cross-examination;^[64] and whether there are other means of assessing the reliability of the evidence.^[65] However, the mere fact that a party is unable to test the evidence by cross-examination will not of itself constitute unfair prejudice, and that the provisions in Part 3.11 must be exercised in accordance with the policy changes effected by the uniform Evidence Acts.

16.47 A related question is whether reliability or credibility can be taken into account in balancing the probative value of evidence against the risk of unfair prejudice arising from admission. Consistent with the adversarial system and the policy underpinning the uniform Evidence Acts that parties should be able to ‘produce the probative evidence that is available to them’,^[66] the Commissions are of the view that questions of credibility and reliability should generally be left to be determined by the tribunal of fact. Factors affecting the reliability or credibility of evidence usually emerge during the course of the trial, particularly in cross-examination. However, where the reliability or credibility of the evidence is such that its weight is likely to be overestimated by the tribunal of fact because of an inability to test the evidence by cross-examination or for some other reason, then these may be considerations relevant to the decision to exclude or limit the use of the evidence.^[67]

Clarification of the mandatory nature of s 137

16.48 Concern has been expressed that the title of Part 3.11 of the uniform Evidence Acts (‘Discretions to exclude evidence’) is misleading given that s 137 is not a discretion but a mandatory exclusion. Submissions and consultations indicate that this has caused some confusion in the courts, and that some judicial officers regard the provision as a discretionary.^[68]

16.49 The Commissions proposed in DP 69 that the heading of Part 3.11 should be amended to read ‘Discretionary and mandatory exclusions’.^[69] This proposal is supported unanimously in submissions and consultations.^[70]

16.50 In order to clarify that s 137 is a mandatory exclusion, the Commissions are of the view that the heading in Part 3.11 of the uniform Evidence Acts should be amended to read ‘Discretionary and mandatory exclusions’.

Should s 135 be made mandatory?

16.51 In IP 28, opinion was sought as to whether s 135 should be amended so that its application is mandatory.^[71]

16.52 Submissions and consultations do not indicate a clear preference one way or the other. Some submissions and consultations favour retaining the existing discretion.^[72] Other consultations consider that it is anomalous to have a provision which allows the court to admit evidence despite a finding that the probative value of the evidence is outweighed by the unfair prejudice.^[73] The NSW Young Lawyers Civil Litigation Committee submits that:

Section 135 should be made mandatory, as a corollary of a finding of such danger is the exclusion of the evidence. Particularly as it is highly unlikely (and as a matter of policy is very undesirable), that a Court would consider allowing such evidence after ruling that it is inherently dangerous.^[74]

16.53 In DP 69, the Commissions concluded that such an amendment is not warranted.^[75] The Commissions remain of this view on two grounds.

16.54 First, such an amendment is considered undesirable on policy grounds. The application of s 135 is significantly broader than s 137: the former applies in both civil and criminal cases and to evidence tendered by both parties, whereas the latter applies only to evidence tendered by the prosecution in criminal proceedings. Section 135 also contains additional grounds for exclusion. As noted earlier, the broader application of s 135 and the more stringent test for exclusion reflect the policy that criminal proceedings involve special considerations.^[76] Given the breadth of its application, the Commissions do not consider that it would be appropriate to render exclusion pursuant to s 135 mandatory.

16.55 Secondly, there is no evidence that the discretionary nature of the section is causing problems in practice. It is unlikely that a court would admit evidence where its probative value is substantially outweighed by any unfair prejudice. If a court were to do so, it would be required to explain why it had elected not to exercise the discretion. If necessary, the matter could then be dealt with on appeal.

General operation

16.56 The primary concerns expressed in submissions and consultations relate to the increased reliance placed on the provisions in Part 3.11 of the uniform Evidence Acts to control admissibility. Some judicial officers and practitioners consider that these provisions do not provide sufficient protection against the admission of unreliable or prejudicial evidence in light of some of the more relaxed rules of admissibility.^[77] Another concern expressed is that some judicial officers are reluctant to take a robust approach to the use of these provisions, particularly in relation to undue waste of the court’s time.^[78] In some consultations it is indicated that the exclusionary provisions are more likely to be used in jury trials than they are in non-jury civil trials or family court proceedings.^[79] On the other hand, some judicial officers and practitioners express the view that the provision is being used effectively and on a regular basis,^[80] and that any concerns in relation to the operation of these provisions are not amenable to legislative solution.^[81]

16.57 Concerns regarding the increased emphasis placed on the provisions in Part 3.11 are expressed on a number of grounds. First, it is submitted that the application of discretionary provisions to control the admission of evidence (hearsay evidence in particular) is ‘ad hoc’ and leads to significant uncertainty for both parties as to what evidence will be admissible at trial.^[82] Secondly, it is submitted that such discretionary provisions cause difficulty because they are not readily amenable to appellate review:

There is a strong rebuttable presumption at the appellate court level that any exercise of discretion has not been abused. Hence, in all but the most extreme cases, a judge’s exercise of discretion to admit or exclude evidence will not be overturned on appeal.^[83]

16.58 In the Issues Paper for the previous Evidence inquiry, the ALRC acknowledged that judicial discretion in relation to the admissibility of evidence has long been subject to criticism, and that courts have often taken the view that it is preferable to exclude evidence by virtue of a general rule and cause injustice in a particular case than to sacrifice the predictability and stability conferred by that rule.^[84] It was noted, however, that much of the debate surrounding the use of discretions in evidence is premised on a false polarisation between discretions and detailed rules.^[85] The ALRC commented that, despite fervent arguments against the use of discretion, in practice it is commonplace:

The laws of evidence generally involve the judges in decisions which, while not defined in terms of discretion, involve mental exercises of a similar nature to those involved in applying a guided discretion. Decisions on whether particular evidence tendered in a trial is relevant or not, whether evidence of previous misconduct is admissible, whether hearsay evidence is admissible as part of the res gestae and whether a record was ‘contemporaneous’ involve the trial judge in drawing a line in the circumstances of the particular case by applying broadly stated principles.^[86]

16.59 The ALRC noted that those seeking greater flexibility in the rules of evidence were not suggesting the introduction of an arbitrary or unfettered discretion. It considered that the discretion could be guided,^[87] enabling greater certainty while also introducing a measure of flexibility.^[88] The ALRC therefore formulated the more relaxed admissibility rules with the intention that the provisions enacted in Part 3.11 would operate to meet the competing purposes of evidence law and to maximise the possibility of justice being done in every case. The benefits of such an approach are described by one commentator as follows:

The notion of discretion embodies the idea that many decisions of admissibility are difficult decisions dependent on a myriad of factors, some better appreciated by trial judges on the spot than appellate judges removed from the fray, and that it is conducive to better decision-making to recognise these difficulties by the express isolation of such a notion. This is not to say that judges have a free choice. Every discretion must be exercised to ensure that decisions of fact are reached in accordance with those principles upon which our procedural system depends.^[89]

16.60 The provisions in Part 3.11 of the uniform Evidence Acts are not unfettered or arbitrary: they must be exercised on the grounds specified in the legislation and in accordance with the principles developed by the law. Importantly, they are subject to appellate review on the grounds that they have not been exercised in accordance with principle. The Commissions do not consider that there is evidence to support the argument that the uniform Evidence Acts have led to ad hoc or unprincipled decision-making which is impervious to review.^[90] It is suggested that many of the criticisms levelled at the reliance on the these provisions in the uniform Evidence Acts scheme stem from a reluctance to abandon common law notions of admissibility. As articulated by McHugh J in Papakosmas v The Queen,^[91]this reluctance is evident in the numerous attempts of judicial officers and practitioners to read the common law into the uniform Evidence Acts admissibility provisions in order to avoid reliance on the provisions in Part 3.11.^[92]

16.61 In DP 69, the Commissions expressed the view that the principal problems with the operation of ss 135–137 relate to judicial practice and are not amenable to legislative solutions.^[93] It was therefore recommended that educational programs should be implemented which focus on the policy underlying the uniform Evidence Acts’ approach to the admissibility of evidence.^[94] One suggestion put forward in consultations in order to increase familiarity with the ‘grid’ structure of the Acts and to avoid the ‘tortured’ readings of the admissibility provisions is to place a textual reference to Part 3.11 in particular sections of the Acts.^[95]

16.62 The Commissions consider that this is not a desirable approach, given the danger that significance might be attached to the absence of such a reference in other provisions. Continuing education programs for members of the judiciary and legal profession regarding the policy underpinning the uniform Evidence Acts’ admissibility provisions, combined with the passage of time allowing for increased familiarity with the Acts, can achieve the desired shift in practice to ensure that the provisions in Part 3.11 operate as intended.^[96]