When assessing probative value under s 137 of the Evidence Act 1995, a trial judge must proceed on the assumption that the evidence will be accepted by the jury and cannot discount probative value by reference to the reliability of the evidence or the credibility of the witness. Considerations such as the inherent unreliability of photographic identification, deficiencies in photo arrays, and cross-racial identification difficulties are matters for the jury, not the judge on admissibility. However, the weight of the evidence may be taken into account when assessing the danger of unfair prejudice. Section 165 is irrelevant to the s 137 assessment.
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