When the Crown tenders evidence of flight as consciousness of guilt evidence under s 137 of the Evidence Act 1995 (NSW), the trial judge must consider the prejudicial effect of any explanation the accused would need to advance to counter the inference, including where that explanation would reveal prior criminal history related to the offence charged. Where evidence of flight is admitted, the trial judge must give directions equivalent to those required for lies relied upon as consciousness of guilt evidence, including alerting the jury to the possibility that the flight was attributable to causes other than guilt of the offence charged. The s 137 balancing exercise is one of judgment, not discretion, and an appellate court may undertake the exercise itself.
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