A pre-trial ruling under s 192A of the Evidence Act 1995 on the admissibility or use of evidence is not an 'order' within the meaning of s 130A of the Criminal Procedure Act 1986 and is therefore not binding on the trial judge. Section 95 of the Evidence Act does not stamp a definitive limit on the use of evidence at the time it is adduced; evidence admitted for a non-coincidence purpose may later be used for coincidence purposes provided ss 98 and 101 are satisfied and no unfairness is occasioned. Where defence counsel makes a rational tactical decision not to object to a deviation from a pre-trial ruling, the court is entitled to conclude that no unfairness attended the process. A sentencing judge who finds exceptional circumstances due to hardship to a third party may properly confine the principal effect of that finding to the non-parole period rather than the head sentence, particularly where the hardship will dissipate on the offender's release on parole.
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