Resolving the Application of the Christie Discretion in the Uniform Evidence Legislation

Abstract

The application of s137 of the uniform evidence legislation, which essentially restates the Christie discretion, has been thrown into confusion with the Supreme Courts of New South Wales and Victoria taking a restrictive and expansive interpretation respectively of the meaning of 'probative value' for the purpose of the weighting exercise between probative value and unfair prejudice. Definitive clarification of such an important and well known evidential principle, which could reasonably have been previously regarded as settled law, will most likely be postponed until a suitable case is heard by the High Court. This article seeks to anticipate such a judicial resolution of the application of s137, by applying well-understood principles of statutory interpretation, to argue in favour of the Victorian expansive approach to the meaning of 'probative value' in the uniform evidence legislation.