When assessing probative value of identification evidence under s 137 of the Evidence Act 2008, a trial judge must assume the jury will accept the evidence as credible and reliable, even where the witness has given multiple inconsistent accounts over many years. Inconsistencies in a witness's successive statements go to credibility and reliability — matters for the jury — and cannot reduce the judge's assessment of probative value. The circumstances of observation (proximity, lighting, duration) may reduce probative value, but the witness's subsequent behaviour and inconsistencies may not. Practical difficulties for the defence in cross-examining a witness may constitute unfair prejudice under s 137, but such prejudice can ordinarily be managed by jury directions and trial management.
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