The 'prejudicial effect' in s 101(2) of the Evidence Act 1995 (NSW) is not limited to the risk of jury misuse of evidence but extends to other forms of forensic unfairness; however, speculative future prejudice such as the existence of an outstanding appeal against a prior conviction, the forensic choice to give evidence, or the possibility of pre-empting appeal arguments does not constitute relevant prejudice. Significant probative value of excluded evidence is a necessary but not sufficient condition for establishing that the prosecution case is 'substantially weakened' under s 5F(3A).
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