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Part 3.11: Discretionary and Mandatory Exclusions (ss 135 – 139)


Part 3.11 of the Evidence Act 2008 contains discretionary and mandatory exclusions. It provides:

These provisions are applied as a safety net, after applying, in order, the threshold relevance test, the exclusionary rules, and the exceptions to those rules. The safety net is needed because of the lower threshold test of relevance (namely logical relevance to a fact in issue (s55)) and the relaxation of some exclusionary rules (for example, hearsay and opinion).

Part 3.11 was intended to exhaustively list the matters a court must ultimately consider when excluding or limiting evidence on policy grounds (ALRC 26:1 at [643]; ALRC 102 at [16.1]-[16.5]). If the terms of these provisions are satisfied, the court may or must exclude otherwise admissible evidence or may limit its use.

The provisions of Part 3.11 are not unfettered or arbitrary; they must be exercised in accordance with the words of the statute and legal principle, and are subject to appellate review.

It has been stated the provisions ‘are to be applied on a case by case basis because of considerations peculiar to the evidence in particular case’ (Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [97] per McHugh J; see also at [40] per Gleeson CJ and Hayne J) McHugh J added that it is not for a judge to abrogate the effect of the legislation by exercising the discretions in a way to make the Act conform with common law notions of relevance or admissibility (see also at [39] per Gleeson CJ and Hayne J).

Sections 135 and 137 compared

There are commonalities and differences between these two important provisions, including the following.

(i) The concept of probative value

The phrase ‘probative value’ appears in s135, s137 and s138 and arises to be considered in s136.

(ii) The concept of unfair prejudice

The concept of ‘unfair prejudice’ appears in s135, s136 and s137. While s137 refers to the 'danger of unfair prejudice' and s135 refers to 'the danger that the evidence might ... be unfairly prejudicial’, in practical terms nothing turns on that different language (DPP (NSW) v JG [2010] NSWCCA 222 per Basten JA at [70]). Its meaning is the same in each section (R v BD (1997) 94A Crim R 131 at 139; Ainsworth v Burden [2005] NSWCA 174 at [99] per Hunt CJ at CL (Handley and McColl JJ agreeing)).

(iii) The weighing exercise

Both s135 and s137 require the court to weigh the probative value of evidence against any unfair prejudice that may arise from admitting that evidence. Two key differences are that:

(iv) Relationship between s135 and s137

Because of the higher standard required to exclude evidence under s135 noted above, when s137 applies, it displaces the work of s135 (see e.g. Li, Wing Cheong v R [2010] NSWCCA 40 at [62]).

(v) Discretionary versus mandatory operation

The term ‘may’ is used in s135 and s136, whereas ‘must’ is used in s137. Thus, s135 and s136 are discretionary. In contrast, there is no residual discretion pursuant to s137. In that case, if the danger of unfair prejudice to the accused outweighs the probative value, then the trial judge must exclude the evidence (Em v R (2007) 232 CLR 67; [2007] HCA 46 at [95], [102]).

This difference is diminished in practice by the fact that it is unlikely that a judge who has concluded that the probative value of evidence is substantially outweighed by its prejudicial effect would nevertheless admit that evidence.

As Odgers observes, ‘the real discretion conferred by ss135 and 137 is the balancing exercise specified in each provision. The major difference … is that the balancing process in s135 is weighted in favour of admission of the evidence’ (Stephen Odgers, Uniform Evidence Law (12th ed, 2016), [EA.135.90]).

(vi) Acting on own motion

Where a party seeking exclusion under these provisions objects, the court may exclude evidence under these provisions. Where no objection is made, there is no general rule requiring a judge to act on their own motion to consider whether to reject evidence pursuant to s137 (FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317 at [27]-[30] (a case where the accused was legally represented, declining to follow Steve v R [2008] NSWCCA 231 at [60], preferring the views in R v Reid [1999] NSWCCA 258 at [3]-[5] and Dhanhoa v R (2003) 217 CLR 1; [2003] HCA 40 at [18]-[22], [53], [91]). See also Samuels-Orunmwense v R [2015] VSCA 152, at [35]).

However, in criminal proceedings there remains an obligation to intervene in appropriate cases to alert the parties to such issues (R v Slack [2003] NSWCCA 93 at [37]; R v Lewis [2003] NSWCCA 180 at [68]).

(vii) Onus

In practice, the party seeking exclusion or limitation of evidence bears the onus of proof in relation to the grounds of exclusion or limitation.

(viii) Warnings and limiting directions

The potentially mitigatory effects of a warning or limiting direction should be taken into account in considering whether to exclude evidence pursuant to s135 or s137 or to limit its use pursuant to s136.

(ix) Appellate review

Appellate review of discretionary decisions pursuant to s135, s136, and s138 must accord with the principles enunciated in House v King (1936) 55 CLR 499 at 504-05; [1936] HCA 40. In contrast, the standard of review for decisions made under s137 varies between interlocutory appeals and appeals from final decisions. In the case of an interlocutory appeal, the principles in House v King apply, while on an appeal from a final order, the court must decide for itself whether the decision was correct (see commentary under s137).

Last updated: 26 July 2016

In This Chapter

s 135 – General discretion to exclude evidence

s 136 – General discretion to limit use of evidence

s 137 – Exclusion of prejudicial evidence in criminal proceedings

s 138 – Exclusion of improperly or illegally obtained evidence

s 139 – Cautioning of persons