s 136 – General discretion to limit use of evidence
136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
Expressions defined in the Dictionary are identified in bold print. Click here to access the Dictionary.
Continuity and change – major change
At common law, evidence is usually admitted for a particular purpose and not others. There is no general discretion to limit the use of admissible evidence.
Sections 60 (Exception - evidence relevant for a non-hearsay purpose) (especially) and 77 (Exception - evidence relevant otherwise than as opinion evidence) effect significant changes to the common law by permitting evidence which is admitted for another purpose to be used for, respectively, a hearsay or an opinion purpose. Section 136 confers a confined discretion (‘if there is a danger’) that mitigates these changes.
ALRC 102 notes diverse responses to the operation of s136 and the claim it is not strong enough to deal with the operation of s60 in particular. The Commissions note that although s136 is not unfettered and must be exercised on principled grounds, it nevertheless allows considerable flexibility for particular cases, especially given that a balancing test is not required (at [7.136], [7.137], [16.74]-[16.76]).
General discretion to limit use of evidence
Section 136 applies in both civil and criminal proceedings. It permits a court to limit the use of evidence that is relevant for more than one purpose if there is a danger a particular use might be:
unfairly prejudicial to a party (s136(a)); or
misleading or confusing (s136(b)).
The provision can be used to overcome the prejudicial effect of evidence to the extent the probative value is no longer outweighed by the danger of unfair prejudice (s137) or substantially outweighed by that danger (s135).
The language of s136 implicitly acknowledges that, because the use of the evidence in question will be restricted in some particular way, the evidence will be admitted into evidence, and will properly be able to be used in some other permissible way. Thus, 'limiting' evidence by, for example, redacting an admissible transcript, would involve excluding admissible evidence and so be a misconceived use of s136. In such a case, the proper approach is to invoke the discretion in either s135 or s137 (see e.g., L'Estrange v R  NSWCCA 89, at -).
Application in general
Section 136 requires discretionary judgment in each case. It does not offer any guidance as to the weight to be afforded to evidence, including expert evidence (Commissioner of Police v Brady  NSWCA 98 at  per Beazley JA (Sheller and Bryson JJA agreeing)).
Odgers suggests the primary question to be asked with respect to ‘a particular use’ is whether the probative value and importance of the evidence, if used for that particular purpose, outweighs the particular danger or dangers (Stephen Odgers, Uniform Evidence Law (1 February 2013) Thomson Reuters – Legal Online (requires user name and password) and Uniform Evidence Law in Victoria (2010) [1.3.14640]).
The High Court rejected the suggestion that in a category of cases (namely, complaint evidence in sexual assault cases) a direction under s136 should be made as a matter of course. The Court reasoned that, while the facts and circumstances of a particular case may enliven the discretion, such a general rule would subvert the policy of the legislation (Papakosmas v R (1999) 196 CLR 297;  HCA 37 at - per Gleeson CJ and Hayne J; at  per McHugh J).
The court should consider the extent to which the dangers of a particular use may be reduced by other action – such as, in a jury trial, directions regarding the permissible and impermissible use/s of the evidence.
Section 136 will be more readily exercised to limit the use of otherwise admissible evidence when there is a jury. This is because a judge sitting alone will mitigate the danger of unfairness – e.g., a judge will attribute less weight to hearsay evidence which remains untested by cross-examination (Seven Network Ltd v News Ltd (No 8)  FCA 1348 at  per Sackville J).
Need for direction
When s136 is enlivened to restrict a particular use of evidence because of the risk of unfair prejudice, a strong jury direction with respect to the limited use to which the evidence may be put should be given both at the time of the tender and in the summing up (Ainsworth v Burden  NSWCA 174 at  per Hunt AJA (Handley and McColl JJA agreeing)).
If such direction cannot overcome the danger of unfair prejudice, the evidence should be excluded altogether.
‘… if there is a danger that a particular use of the evidence might’
The court ‘does not have to be satisfied that a particular use of evidence will be unfairly prejudicial,’ but only that the there is a danger that it might be (Seven Network Ltd v News Ltd (No 8)  FCA 1348 at  per Sackville J).
‘Unfairly prejudicial’: s136(a)
‘Unfair prejudice’ has the same meaning in s136 as in s135 and s137 (R v BD (1997) 94 A Crim R 131 at 139). Unlike s135 and s137, however, s136 does not require a balancing test. Relevant commentary is detailed at s137.
‘Misleading or confusing’: s136(b)
‘Misleading or confusing’ is substantially the same concept in s136 as in s135, and relevant commentary is provided at s135. The exercise of the discretion in s136 will be affected by the fact that it relates to the limited use of evidence, whereas s135 relates to exclusion.
Evidence admitted as an exception to an exclusionary rule
The uniform evidence legislation exclusionary rules apply to evidence sought to be used in a particular way. However, s60 and s77 operate to exclude the application of the hearsay and opinion rules in respect of evidence which is relevant and admitted for another purpose.
In this way, evidence may be used for a purpose for which it would otherwise be inadmissible. Where this is the case, s136 may be utilised to limit the use of the evidence in one or more ways, provided that the terms of the section are satisfied.
While s136 is available to limit the use of evidence, where s60 or s77 is enlivened, s136 should not be routinely utilised to limit the use of the evidence and thereby undermine the policy intent which underpins s60 or s77 respectively (Seven Network Ltd v News Ltd (No 8)  FCA 1348 at  per Sackville J).
Rather, where a party seeks to apply s136 to evidence which is otherwise prima facie admissible under the Act, a court should be satisfied ‘there is a good and substantial reason to depart from the policy’ of the Act (Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd  NSWSC 654 at  per Barrett J).
Where s136 might be exercised in response to the application of s60 or s77, Odgers notes that ‘the considerations that found the general rule of inadmissibility’ (i.e., the reasons why the evidence could not be used but for s60 or s77) are particularly relevant to determining whether the discretion under s136 should be exercised.
Odgers notes that other relevant factors will include the nature of the proceedings and whether the tribunal of fact is a jury (Stephen Odgers, Uniform Evidence Law (1 February 2013) Thomson Reuters – Legal Online (requires user name and password) and Uniform Evidence Law in Victoria (2010) [1.3.14640]).
In cases where it is suggested that the use that may be made of a prior consistent statement be limited to credibility, pursuant to s136, it is important that the preconditions to admissibility of credibility evidence under s108(3)(b) and s192 are not circumvented. Among them will be the capacity of the statement to respond to the attack made on the complainant’s credibility (ISJ v R (2012) 38 VR 23;  VSCA 321 at ).
Whatever the gateway by which the evidence is sought to be admitted, once the trial judge has under consideration limiting the use of the evidence to credit, the judge should be satisfied that the preconditions laid down under the Act are satisfied (ISJ v R (2012) 38 VR 23;  VSCA 321 at ).
(i) Under section 60
The policy for s60 recognises the difficulty under the old law that evidence admitted for a non-hearsay purpose could not be used for a hearsay purpose, even though the evidence was also relevant for that latter purpose.
Consistently with that recognition, the two major areas where the interaction between s60 and s136 has been considered are:
prior representations (consistent and inconsistent) tendered in relation to credibility, and
hearsay representations admitted to show the factual basis of an expert’s opinion.
Hearsay evidence relevant to the credibility of a witness
Evidence of a prior representation may be relevant to a witness’ credibility. If such evidence is admitted as an exception to the credibility rule in Part 3.7, s60 will operate to allow the evidence to be used for a relevant hearsay purpose, unless s136 is invoked to prohibit that use.
A warning under s165 (or Jury Directions Act 2015 s32) should, ordinarily, be sufficient to alert the jury to the dangers of hearsay evidence. For that reason, s136 should be invoked only in cases where the danger could not be cured by such a warning (Papakosmas v R (1999) 196 CLR 297;  HCA 37 at  per McHugh J citing R v BD (1997) 94 A Crim R 131 at 139-40 per Hunt CJ at CL; 151 per Bruce J).
In Papakosmas, McHugh J considered (sexual assault) complaint evidence that was relevant for its hearsay purpose and for its credibility purpose. He noted that a judge would be more likely to limit such evidence to its credibility use, where it has been admitted as an exception to the credibility rule, as opposed to when it has been admitted as an exception to the hearsay rule. Nevertheless, he also noted that s136 should still not be applied as a matter of course or where the dangers of unfair prejudice to a party can be corrected by a warning (at ).(Papakosmas v R (1999) 196 CLR 297;  HCA 37 at ; see also ISJ v R (2012) 38 VR 23;  VSCA 321 at -).
In another case, it was held that statements by a complainant to the police and an examining doctor about a sexual assault shortly after the events in issue should have been permitted to be used as evidence of their truth (Thorne v R  NSWCCA 10 at  per Howie J (Sully and Hall JJ agreeing)).
Hearsay evidence relevant to show the basis of expert opinion
Under s60, out-of-court representations of fact which are admitted to prove the basis of an opinion may also be used to prove the existence of those facts, unless otherwise limited by s136.
Where the operation of s60 would cause unfair prejudice, it may be appropriate to limit the use of the evidence to testing the basis of the specialised knowledge of the expert to whom the communications were made. Matters to be considered include:
whether the maker of the representation is to be called to give evidence and whether the other party has had a real opportunity to test the accuracy of the facts asserted (Daniel v State of Western Australia  FCA 223 per Nicholson J);
the circumstances in which the representations were made;
the character of the representations (Daniel v State of Western Australia  FCA 223 per Nicholson J);
whether the representations were within the personal knowledge of the maker (ASIC v Rich  NSWSC 149 at  per Austin J);
the likelihood or otherwise that the representations have been fabricated; and
compliance with the expert witness guidelines of the court (refer s79).
(ii) Under section 77
Section 77 (Exception – evidence relevant otherwise than as opinion evidence) may apply when, in the course of the events in issue, a person expresses an opinion that is relevant for other purposes (e.g., to show another person’s response to what was said).
When evidence is led for other purposes and it contains opinion evidence, s136 may be applied to limit the use of the evidence to the parameters set by s76 (The opinion rule).
In the case of a joint trial when there is evidence relevant to facts in issue against some but not all defendants, s56 renders that evidence, subject to the Act, admissible ‘in the proceeding’ involving all the parties. If it is not relevant to the case against one of the parties it is, nonetheless, evidence admissible in the proceeding and available to be used for any purpose, unless one of the exclusionary rules or provisions of Part 3.11 applies and is used to exclude it or to limit its use.
Despite such evidence being admissible 'in the proceeding', s136 can be used to limit the use of the evidence to the case involving the parties for which it is relevant if the conditions of that section are satisfied (Australian Securities and Investments Commission v Vines (2003) NSWSC 995 at - per Austin J; followed in ASIC v McDonald  NSWSC 995 at - per Gzell J).
Section 136 should be applied with considerable care in joint trials (Allam v Aristocrat Technologies Australia Pty Ltd  FCAFC 34). In Allam, the trial judge provisionally ruled under s136 that particular emails were admitted as evidence against one or more but not all of the respondents. After all the evidence in the trial had been admitted, and at the time of closing submissions, the trial judge reconsidered the provisional ruling and admitted the emails against all the respondents.
This procedure was criticised on appeal. One consequence of the trial judge’s course of action was that the respondents against whom the evidence was not initially admitted conducted their case differently than they would have if the evidence had initially been admitted against them. The Full Court of the Federal Court concluded that: the proper course to have followed was for the evidence to be admitted provisionally at the outset against all the respondents, and then for it to have been considered in submissions (Allam v Aristocrat Technologies Australia Pty Ltd  FCAFC 34 at ).
Thus, instead of provisionally admitting the evidence under s136 when it was adduced, the trial judge should have applied s57 to admit the evidence against all respondents on the basis that the evidence was relevant and admissible against all the respondents, subject to further evidence being admitted at a later stage in the proceeding that would make it reasonably open to make that finding (s57(1)(b)).
Appellate review of a trial judge’s decision under s136 occurs on the basis of the ordinary rules in relation to discretionary decisions, as stated in House v R (1936) 55 CLR 499 at 504-505;  HCA 40 (South Western Sydney Area Health Service v Edmonds  NSWCA 16 at  per McColl JA; GBF v R  VSCA 135 at -).
Significant other sections that are or may be relevant
The relevance provisions (s55 - s58), the exclusionary rules and exceptions must be considered before consideration of the discretionary and mandatory exclusions.
Other sections include:
General discretion to exclude evidence (s135)
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.136.30]-[EA.136.300].