The onus to establish that evidence should be excluded under s 137 of the Evidence Act 2008 (Vic) lies on the accused, not the Crown, following Gilmour v EPA. Section 142 does not reverse this onus. When seeking leave to appeal interlocutory evidentiary rulings under s 297 of the Criminal Procedure Act 2009 (Vic), the merits of the proposed appeal are relevant, and challenges to the exercise of judicial discretion (as opposed to pure points of law) face a higher threshold. A bare assertion of contamination from the bar table will not suffice to trigger the exclusionary power under s 137; the accused bears at least a tactical evidential burden to point to material suggesting a realistic possibility of contamination.
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