On a Crown interlocutory appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW) against a ruling excluding evidence, the Court of Criminal Appeal has jurisdiction to review the trial judge's ruling and, if the ruling is found to be erroneous, to vacate it and permit the Crown to lead the evidence.
Tobias JA, Wood CJ
When assessing identification evidence under s 137 of the Evidence Act 1995, the proper approach is to weigh the probative value of the evidence against the danger of unfair prejudice, not to focus on whether the jury might engage in an impermissible reasoning process. A prior mistaken photo identification does not necessarily contaminate subsequent identification evidence to the point of requiring exclusion; such weaknesses go to weight rather than admissibility and are matters for the jury with appropriate directions. The concept of 'unfair prejudice' in s 137 does not encompass the risk that a jury might give evidence more weight than it deserves.
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