When assessing probative value under s 137 of the Evidence Act 1995, a trial judge must take the Crown evidence at its highest and may not consider competing inferences, questions of reliability or weight, or alternative explanations for the accused's conduct — these are matters for the jury. The danger of unfair prejudice must be evaluated on the basis of the evidence actually given on the voir dire, not on hypothetical forms of prejudice that may or may not materialise at trial. Edwards v The Queen does not authorise exclusion of consciousness of guilt evidence merely because an innocent explanation for the accused's conduct is plausible.
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