Evidence that would render a criminal trial unfair is, as a matter of definition, unfairly prejudicial under s 137 of the Evidence Act 1995 (NSW), and a trial judge must consider whether advance rulings under s 192A of the Evidence Act or s 130A of the Criminal Procedure Act 1986 (NSW) can cure unfairness before granting a permanent stay. The mere possibility that a protective ruling could be revisited does not satisfy the test of unacceptable injustice required for a permanent stay. Loss of evidence going only to credibility, rather than to the central issue in the case, is unlikely to warrant a permanent stay.
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