Paternity index statistics derived from DNA testing are admissible in criminal proceedings under s 137 of the Evidence Act 1995 (NSW), provided appropriate directions are given to the jury about the prosecutor's fallacy. Relative chance of paternity expressed as a percentage may properly be excluded where the figures are so close to 100% as to create a real risk of jury misuse. A ruling under s 137 is not a discretionary ruling but involves findings of law and fact. A trial judge at a subsequent trial following a hung jury is not bound by a prior judge's evidentiary ruling.
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