Rules of Evidence

Discretionary and Mandatory Exclusions

Evidentiary rules exist to allow courts to exclude any evidence that otherwise would be admissible, for reasons of general concern. The exclusions are addressed as follows:


Prejudice, Confusion and Waste of Time

Section 135 provides that where the probative value of the evidence is outweighed substantially by certain problematic issues then such evidence is to be excluded. These issues are a tendency to produce unfair prejudice, a potential to be misleading or confusing, or an undue waste of time. Misleading and confusing evidence includes evidence which fails to present the whole picture of a set of facts.[1]


Probative value is to be determined in broadly the same manner as discussed above under the heading of Tendency and Coincidence. However, it has been noted:

The probative value of hearsay evidence could be affected by the circumstances in which the representation was made and the opportunity to test the weight of the evidence.... The possibility of concoction could suggest contamination.[2]

[1] Hughes Aircraft Systems international v Airservices Australia (1997) 146 ALR 1.

[2] Northern Territory Government, Department of Justice, Discussion Draft of the Uniform Evidence Act for the Northern Territory, Darwin, 2011, p93.

All statutory sections from unspecified Acts, are sections from a model Act of the Commonwealth Parliament as described on the first page of this chapter, and should be replicated as described in each of the related Acts of each State and Territory. (Jurisdiction to regulate the rules of evidence exists in the States and Territories and not in the Commonwealth).