When assessing probative value under s 138 of the Evidence Act 1995 (NSW), the evidence must be taken at its highest: unless the risk of contamination or interference is so great that the jury could not rationally accept the evidence, reliability concerns do not reduce probative value but are matters for the jury. The question whether appellate review of s 138 decisions is subject to House v The King restraint or the correctness standard remains open, though the majority expressed the preliminary view that s 138 involves a binary choice admitting of only one correct answer.
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