The Court excluded under s 137 of the Evidence Act 1995 (NSW) a toxicologist's opinion that the accused's 'aggressive and violent behaviours may have been enhanced by cocaine in addition to alcohol', finding the words assumed a prior history of aggressive behaviour and created a danger the jury would engage in impermissible propensity reasoning that outweighed the evidence's probative value. The jury was then discharged because the Crown had already referred to the excluded words in her opening address, and the Court concluded that no direction could adequately cure the prejudice given the words would remain 'vividly etched' in the jury's minds, particularly as the trial had only just commenced and a fresh jury could readily be empanelled.
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