Section 137 of the Evidence Act 1995 (NSW) imposes a mandatory obligation on the trial judge to exclude evidence where the danger of unfair prejudice outweighs probative value, regardless of whether the defence takes objection. The admission of irrelevant evidence portraying an accused as violent, sexually predatory and a child molester, in a case depending on complainant credibility, will constitute a miscarriage of justice warranting a new trial. Defence counsel's failure to object to such evidence is not explicable as a rational tactical decision where the evidence is of extreme bad character with no probative value.
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