The discretion under s 138 of the Evidence Act 1995 is distinct from the discretion under s 90 and is not concerned with ensuring a fair trial for the accused; it balances competing public interests. When exercising the s 90 discretion, the probative value of evidence has little significance where reliability is accepted, and 'unfair prejudice' (a s 137 concept) is not a relevant consideration. Section 137 does not apply to evidence of admissions where the only prejudicial effect is the evidence's capacity to prove the accused committed the offence. Police subterfuge in secretly recording a conversation does not necessarily require exclusion under s 90 unless the police induced a belief that statements would not be used in evidence.
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