The unavailability for cross-examination of the maker of prior representations admitted under s 65(2) of the Evidence Act 1995 (NSW) may, in appropriate circumstances, give rise to unfair prejudice substantially outweighing the probative value of those representations, warranting exclusion under s 135(a). A trial judge's reference to the inadequacy of a police investigation in the context of a s 135(a) ruling is not necessarily the taking into account of an irrelevant consideration; it may properly serve as an explanation of why cross-examination of available witnesses would be insufficient to cure the unfair prejudice.
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