The forensic difficulty an accused faces in being unable to deny an admitted offence does not constitute unfair prejudice within the meaning of s 101(2) of the Evidence Act 2011 (ACT). Prejudice arising solely from the probative value of evidence is not a basis for exclusion under s 101(2). Where tendency evidence is supported by independent objective evidence (such as DNA), its probative value will be particularly strong. The question whether the correctness standard or House v The King standard applies to s 101(2) rulings remains unresolved in the ACT.
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