Section 135 of the Evidence Act 1995 (NSW) involves an evaluative judgment, not an exercise of judicial discretion, and appellate review of exclusion decisions under s 135 is on the correctness standard, not the House v The King standard. Multiple prior decisions applying the House v The King standard to s 135 are no longer good law. A co-accused is a 'party' for the purposes of s 135(a), enabling the court to exclude evidence that is unfairly prejudicial to a co-accused. The proper approach to s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is the two-stage approach stated in R v Harris (Bell J) and R v Harris (CCA), assessing culpability by reference to circumstances surrounding or causally connected to the offence, which can include the offender's mental state, motive and personal background; the approach in R v Qaumi is rejected.
The full text is available to signed-in members, including the 40 later cases that cite this judgment.
15 of the 40 citing cases carry a classified treatment. How each court treated it is available to signed-in members.