Is Judicial Consideration of Credibiltiy and Reliability under Section 137 of the Uniform Evidence Law a Guarantee of Fairness or 'Moral Treason'?

Abstract

This article considers the operation of s 137 of the Uniform Evidence Law, which requires the exclusion of evidence that is more prejudicial than probative. The operation of this provision is contested by two recent decisions: Dupas v The Queen, delivered by the Victorian Court of Appeal, and R v XY, in which the New South Wales Court of Criminal Appeal largely endorsed its previous decision in R v Shamouil. These courts adopted different positions as to whether reliability should be considered when assessing the probative value of evidence. Both courts agreed that credibility should not be considered, for different reasons. The article emphasises that, like any statutory provision, s 137 must be understood in light of its purpose, and critically evaluates how these decisions have understood and applied the provision in light of that purpose. It is suggested that there are aspects of both decisions that will lead judges to misestimate the effect directions must have on evidence to render its prejudicial effects proportionate to its probative value.