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; or
(d) unnecessarily demean the deceased in a criminal proceeding for a homicide offence.
Note This section does not limit evidence of family violence that may be adduced under Part IC of the Crimes Act 1958.
Expressions defined in the Dictionary are identified in bold print. Click here to access the Dictionary.
Continuity and change – major change
At common law, admissibility is based on ‘sufficient relevance’, which encompasses notions of both logical and legal relevance. The latter includes considerations of probative value, unfair prejudice (the relevance discretion) and whether the evidence is misleading or otherwise wastes the court’s time.
The Act largely retains the common law position, but logical and legal reasoning processes are both distinguished and transparently articulated by the separate requirements of relevance (ss55, 56) and the weighing exercise of s135.
Unlike the common law, the Act does not rely on the concept of ‘sufficient relevance’ as the means to exclude evidence of minimal probative value. This provision now largely performs that function.
While s135 means it is possible for the court to exclude evidence adduced by the accused, NSW case law suggests this does not happen often.
General discretion to exclude evidence
Section 135 applies in both civil and criminal proceedings. It operates to exclude evidence that is logically probative and so satisfies s55 (Relevant evidence) but insufficiently probative when considered against one or more of the following three policy concerns:
unfair prejudice to a party (s135(1)(a));
it is misleading or confusing (s135(1)(b)); or
it may cause or result in undue waste of time (s135(1)(c)); or
it will unnecessarily demean the deceased in a criminal proceeding for a homicide offence (s135(1)(d)).
Section 135 is not limited to excluding evidence which is otherwise admissible under Part 3 of the uniform evidence legislation. It may also apply to evidence otherwise admissible at common law (Evans v R (2007) 235 CLR 521;  HCA 59 at  per Kirby J; at  per Heydon J).
The party seeking exclusion under s135 bears a considerable onus, as they must demonstrate that the probative value of the evidence would be ‘substantially’ outweighed by the danger of its unfair prejudicial effect.
In applying this provision, the court must:
firstly, ascertain whether the evidence is relevant (s55) and consider whether any of the exclusionary rules applies;
if the evidence is relevant and not otherwise inadmissible, then determine the probative value of the evidence;
next, determine whether, on the balance of probabilities, there is a danger that, if admitted, the evidence might have one or more of the identified consequences. If the court concludes there is no such danger, s135 provides no basis for exclusion;
if the court considers that, if admitted, the evidence might have one or more of the identified consequences, it must weigh that danger against the probative value of the evidence in order to determine whether the danger substantially outweighs its probative value. If so, then – subject to the following paragraph – the evidence may be excluded.
As to whether the court may apply this provision on its own motion, see point (vi) under the heading Sections 135 and 137 Compared in the Introduction to this Part 3.11.
The weighing exercise
In the weighing exercise (for s135 and s137), the court should consider the extent to which problems associated with admitting the evidence may be mitigated by actions other than exclusion, including limiting the use of the evidence or by appropriate jury directions (see ALRC 26:1 at ; ALRC 102 at [16.34]; R v Shamouil (2006) 66 NSWLR 228;  NSWCCA 112 at , ,  referring to R v BD (1997) 94 A Crim R 131 at 151 (Simpson and Adams JJ agreeing)).
‘Probative value’ is defined as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’ (see UEA Dictionary). The meaning in s135 is similar to that in the criminal context of s137. The relevant commentary is detailed at s137.
The requirement that the specified dangers ‘substantially outweigh’ the probative value of evidence before that evidence might be excluded has been described as requiring that the probative value be ‘well outweighed’ by the prejudicial effect (R v Clarke  NSWCCA 494 at  per Heydon JA (Dowd and Bell JJ agreeing)). That risk of danger must be more than one of mere possibility (R v Lisoff  NSWCCA 364).
Unfairly prejudicial: s135(a)
‘Unfair prejudice’ has the same meaning in s135, s136 and s137(R v BD (1997) 94 A Crim R 131 at 139; Ainsworth v Burden  NSWCA 174 at  per Hunt CJ at CL (Handley and McColl JJ agreeing)). Relevant commentary is detailed at s137.
However, under s135 ‘unfair prejudice’ may be accorded a wider scope than that provided by s137 to ensure a fair trial for accused persons.” (R v Qaumi & Ors (No 24)  NSWSC 505 at ).
(i) Unfair prejudice in proceedings with judge alone
‘Unfair prejudice’ most often arises when there is a risk that the tribunal of fact will misuse the evidence in some way. Thus ‘unfair prejudice’ is particularly relevant to jury trials, but not trials by judge sitting alone, where it would be unlikely for the judge to exclude evidence on the basis that they would misapply it (Ordukaya v Hicks  NSWCA 180; Ainsworth v Burden  NSWCA 174 at ; Seven Network Ltd v News Ltd (No 8)  FCA 1348 at  per Sackville J; ASIC v McDonald  NSWSC 995 at  per Gzell J; Goddard Elliot (a firm) v Fritsch  VSC 87 per Bell J at ).
(ii) Procedural unfairness
Despite early views that ‘unfair prejudice’ did not extend beyond misuse of evidence by the tribunal of fact to procedural unfairness, it is now generally accepted that procedural considerations may constitute unfair prejudice. Relevant commentary is detailed at s137.
Misleading or confusing: s135(b)
Section 135(b) is included in order to exclude evidence when there is a danger the jury will unduly focus on the evidence and accord it more significance than it deserves (see ALRC 26:1 at ). These concerns overlap with those addressed in s135(a) (see paragraph 35 under the commentary on ‘unfair prejudice’ at s137). It has been observed that, notwithstanding their separate listing, these categories need not be considered mutually exclusive (ALRC Discussion Paper 69 at [14.31]).
An example of evidence which can mislead or confuse is that of raw percentage results in DNA tests. Unqualified or unexplained percentage results can be misleading or confusing, as well as prejudicial (R v GK (2001) 53 NSWLR 317;  NSWCCA 413; R v Galli  NSWCCA 504 at ).
However, in Aytugrul v R  NSWCCA 272, the majority limited those cases, stating that GK and Galli were not authority for the proposition that DNA percentage results must always be excluded under s135 or s137 (Aytugrul v R  NSWCCA 272 at ).
The NSW Court of Criminal Appeal allowed the evidence to be presented as a percentage result. The High Court upheld that finding, unanimously holding that, presented as it was, the DNA exclusion percentage was not unfairly prejudicial (Aytugrul v R (2012) 247 CLR 170;  HCA 15).
In R v MK  NSWCCA 110, Beech-Jones J rejected a proposition that DNA evidence that was sought to be admitted in that case verged on being unreliable and meaningless. The Court noted that, following the decision in Aytugrul v R, it was incorrect to suggest that DNA evidence expressed in terms of an exclusion percentage was necessarily prejudicial, and that such evidence could be accurately explained to a jury in a manner which they were capable of understanding. The same also applied, and with even greater force, to DNA evidence expressed as a frequency ratio (R v MK  NSWCCA 110 at  per Beech-Jones J (Hoeben JA and Hidden J agreeing).
Another example is Reading v ABC  NSWSC 716 (ALRC Discussion Paper 69 at [14.30]). In this (defamation) case, in circumstances where an audio-visual record of the subject program existed, Shaw J excluded a transcript of a television program because it risked undue focus on words alone and removed them from their full, ‘as-spoken’ context, including tone, gesture, setting, etc.
It is highly unlikely that, in a trial before a judge alone, there will be a danger that evidence will be misleading or confusing. As Campbell J noted:
There is something bizarre in submitting to a judge sitting alone that he or she should reject evidence on the ground that it might mislead or confuse him or her. I propose to trust myself, so far as that is concerned (Re GHI (A protected person)  NSWSC 466 at ; cited with approval in Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35)  VSC 59 at ).
Cause or result in undue waste of time: s135(c)
Given the breadth of the relevance test, this ground may be used to exclude needless duplication of evidence (Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 at 107;  FCA 876).
Because the evidence must not cause only a waste of time, but an ‘undue’ waste of time, the duplication must be clearly needless. Odgers observes that the tautology is to ensure a high threshold for exclusion under this ground – minimal probative value would not be sufficient but it might ‘if it added complexity without assisting resolution of the facts in issue’ (Odgers, Uniform Evidence Law in Victoria (2010) at [1.3.14600]).
Further, it is not sufficient for time to be ‘taken’; it must be ‘wasted’.
The reference to ‘undue’ also means it is relevant for the court to consider the importance of the evidence in the context of the case (ALRC 26:1 at , fn 9).
Odgers lists a range of factors that may provide context for considering whether particular evidence is an ‘undue waste’ of time. These include:
whether the evidence has/may have incremental value;
whether it is needlessly duplicative;
what value the evidence has for the jurors;
whether admission of the evidence will require other evidence to be admitted to evaluate it; and
whether exclusion might result in inappropriate jury speculation (see Odgers, Uniform Evidence Law in Victoria (2010) at [1.3.14600])
In Matthews v SPI Electricity & Ors (Ruling No 21)  VSC 219, counsel for the plaintiff sought to tender 18 audit reports. The Court rejected the tender of these reports on the basis that, if the reports were tendered, the potential cost and delay to the trial caused by their tender was so great that it clearly outweighed the probative value of the reports (Matthews v SPI Electricity & Ors (Ruling No 21)  VSC 219).
In reaching this conclusion, J Forrest J noted:
[T]hat the probative value of the reports as a group is insignificant … the audits are irrelevant to the Valley Span and its inspections by USC. Insofar as they establish the underlying material for proving an asserted systemic problem with inspections of pole top assets, the audit summaries demonstrate that point. The only remaining point … is whether any of the particular inspections were indicative of inspector recidivism in relation to pole top inspections. That issue can be resolved without the tender of the reports at this point of time. It is known that a number of employees of SPI and USC will be called who have a familiarity with the auditing system and its application in the field; undoubtedly, they can be questioned as to the number of inspectors who repeatedly failed the pole top inspection aspect of the audit (Matthews v SPI Electricity & Ors (Ruling No 21)  VSC 219 at ).
The issue of adjournment was considered in Dyldam Developments Party Ltd v Jones  NSWCA 56. On the penultimate day of the trial, the appellant produced evidence that should have been produced 12 months earlier. The dilemma for the trial judge was that the probative value of the evidence was unknown – to admit untested evidence could be to admit unfairly prejudicial material and/or evidence of little probative value; but if an adjournment were granted to test it then this would result in a substantial delay caused by the flagrant misconduct of one party. The Court of Appeal found that, in all of the circumstances, the trial judge was ‘entitled to give considerable weight to this waste of time’ (at - per Hodgson JA (Giles and Basten JJA agreeing)).
Expert evidence about a matter which is known to all would, although admissible, normally be a waste of time and excluded pursuant to s135 (Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397;  FCAFC 70 at ).
In R v Taylor  NSWCCA 194, Bell J approved the trial judge’s exclusion of evidence under s135 (at - (Spigelman CJ and Miles AJ agreeing)). His Honour had considered the fact that there was other evidence to prove the same matter, and that admitting the evidence would result in an already lengthy cross-examination being further prolonged and further evidence being called.
R v Smith  NSWCCA 388 was an appeal seeking a new trial on the basis of fresh (expert opinion) evidence. Smart AJ noted‘[t]he research would have to be investigated and evaluated and tests may have to be conducted’ and then the jury would still have to assess the identification in issue. His Honour held that the relevant points had been put before the jury and the evidence should be excluded (at - (Foster AJA and Dunford J agreeing)).
Unnecessarily demean the deceased: s135(d)
Subsection 135(d) was introduced in order to exclude evidence that unnecessarily demeans a deceased victim. It applies only to criminal proceedings involving a homicide offence. It is in response to the reality that a deceased victim is absent from court and unable to respond to attacks against their character.
The provision is not intended to exclude evidence that is admitted for a legitimate forensic reason: Explanatory Memorandum to the Crimes Amendment (Abolition of Defensive Homicide) Bill 2014, clause 9. It does not limit evidence of family violence that may be adduced under Part IC of the Crimes Act 1958.
Subsection 135(d) applies to all trials commencing from 1 November 2014, regardless of when the alleged offence occurred.
A discretionary decision by a trial judge to exclude evidence under s135 would, on appeal, be reviewed on the basis of the ordinary rules in relation to discretionary decisions as stated in House v The King (1936) 55 CLR 499 at 504-505;  HCA 40 (Collaroy Services Beach Club Ltd v Haywood  NSWCA 21 at ; Insurance Australia Limited t/as NRMA Insurance v John Checchia (2011) 80 NSWLR 1;  NSWCA 101 at ).
Significant other sections that are or may be relevant
The relevance provisions (s55 - s58) must be considered before applying the discretionary and mandatory exclusions.
Other sections include:
General discretion to limit use to be made of evidence (s136)
Exclusion of prejudicial evidence in criminal proceedings (s137)
Unreliable evidence [warnings] (s165)
Leave, permission or direction may be given on terms (s192)
Advance rulings and findings (s192A)
Stephen Odgers, Uniform Evidence Law (12th ed, 2016) [EA.135.30]-[EA.135.300].