16.63 Section 136 of the uniform Evidence Acts provides the trial judge with a discretion in both civil and criminal proceedings to limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or misleading or confusing to the tribunal of fact.
16.64 As noted earlier in this chapter, the term ‘unfair prejudice’ carries the same meaning in ss 135, 136 and 137, and hence the preceding discussion of that concept applies. However, unlike the other two provisions, s 136 does not involve a balancing test and this will affect the manner in which the section applies. In this respect, it has been said that s 136 bears some resemblance to the common law fairness discretion, although it has been made clear that there is no residual discretion to exclude evidence on the ground of unfairness to the accused under the uniform Evidence Acts.
16.65 Authorities have emphasised that, when determining whether s 136 should be applied to limit the use of evidence, regard should be had to the policy changes effected by the uniform Evidence Acts. The High Court addressed this issue in Papakosmas v The Queen, emphasising that the mere fact that evidence would not have been admissible at common law does not of itself create unfair prejudice. In this case, evidence of recent complaint of sexual assault was admitted as truth of the facts asserted pursuant to s 66 of the uniform Evidence Acts. At common law, evidence of recent complaint is admissible for its credibility use but not for its hearsay use. On appeal, the defendant argued that the trial judge should have exercised the discretion in s 136 to limit the use of the recent complaint evidence to that which would have been permissible at common law (and that the use of recent complaint evidence should generally be so limited). The High Court rejected this argument, holding that it amounted to ‘an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded’. The High Court considered that there may be circumstances in which it would be appropriate to limit the use of complaint evidence, however such circumstances did not arise in the present case.
16.66 Section 136 is often invoked where hearsay evidence is admissible pursuant to s 60, which provides that evidence admitted because it is relevant for a non-hearsay purpose is also admissible for a relevant hearsay purpose. Section 60 is of general application, whereas other exceptions to the hearsay rule apply to particular species of evidence. Concern has been expressed that ‘the narrowness of [s 136] does not provide much of a safety net’ against the potentially far-reaching effects of s 60. In Roach v Page (No 11), Sperling J opined that ‘special considerations’ operate in relation to s 60, as its legislative purpose is not to facilitate proof but rather to avoid distinctions having to be made between using evidence for one purpose but not another. Hence, his Honour expressed the view that there may be a stronger case for limiting the use of evidence where it has been admitted pursuant to ss 60 or 77 (a similarly broad provision which lifts the opinion rule in relation to evidence containing an opinion which is admissible for a purpose other than proof of the existence of the facts about which the opinion was expressed).
16.67 The difficulty a tribunal of fact may have distinguishing between the permissible and non-permissible uses of evidence may be taken into account when the court is considering whether to limit the use of the evidence or exclude it altogether. For example, in R v Dann, the trial judge admitted relationship evidence, but warned the jury that it could not use that evidence for a tendency purpose. On appeal, it was held that the evidence should have been excluded pursuant to s 137 because, despite the warning given, the distinction between the relationship use and the tendency use was too difficult to grasp in the circumstances of the case.
Submissions and consultations
16.68 In IP 28, opinion was sought as to the general operation of s 136. In particular, it was asked whether s 136 was operating effectively to limit the operation of s 60. In response to submissions and consultations (outlined below), DP 69 recommended that no changes should be made. Relatively few submissions were received in response.
16.69 Judicial officers and legal practitioners provide a range of perspectives on the operation of s 136. Some practitioners express the view that s 136 has not been used much by judicial officers to limit the use that can be made of evidence that is relevant for more than one purpose. In relation to expert evidence, the view is expressed that s 136 is not often used to control the use made of the factual content of such evidence, but that this does not create any problems in practice as the judge can deal with it as a matter of weight to be given to the evidence. In contrast, some judicial officers and practitioners consider that the section is being used frequently enough.
16.70 One concern expressed in relation to s 136 is the uncertainty of the scope of the grounds for exclusion. In particular, it is said that there is uncertainty as to whether the inability to cross-examine on evidence admissible for a hearsay purpose creates unfair prejudice.
16.71 In relation to the interaction between ss 60 and 136, some judicial officers and practitioners suggest that the section is operating effectively to limit the operation of s 60. In contrast, others suggest that s 136 is insufficient to limit the use of unreliable evidence pursuant to s 60. One former judicial officer submits:
Applications under s 136 are costly in time and money. Furthermore, because such decisions involve the exercise of a discretion, there is the potential for inconsistent decisions on similar facts.
16.72 Another commentator expresses concern that s 136 is an ‘inelegant’ or unnecessarily complicated method of controlling problems created by the breadth of s 60.
16.73 One judicial officer expresses concern that, where counsel fails to raise s 136 in relation to expert evidence which is admitted, s 60 may operate automatically such that the evidence can also be used as proof of the truth of the facts asserted.
The Commissions’ view
16.74 The principal criticism put forward in submissions and consultations is that s 136 is not sufficient to limit the operation of s 60. The Commissions are of the view that this criticism stems in part from concerns about the discretionary nature of the provision and in part from concerns about the breadth of the exception contained in s 60. The Commissions consider that the scope of the exclusionary grounds contained in s 136 is sufficiently broad to limit the hearsay use of evidence admitted pursuant to s 60 where this is considered necessary. This is particularly so in light of the fact that, unlike ss 135 and 137, no balancing test is required to be undertaken. See Chapter 7 for a more detailed discussion of this issue.
16.75 In relation to the concern that the automatic operation of s 60 might disadvantage parties where counsel fails to seek limitation pursuant to s 136, the Commissions consider that this is a matter of trial practice in an adversarial system. If an opposing party elects not to object to the operation of s 60, the party tendering the evidence is generally entitled to proceed on the basis that objection is not taken. If a trial judge considers that it is necessary to seek clarification on this issue, he or she should seek confirmation from counsel that the failure to avert to s 136 indicates that no such objection is taken.
16.76 The Commissions concluded in DP 69 that the problems identified with s 136 in relation to the scope of the exclusionary grounds would not be ameliorated by legislative amendment. The Commissions remain of this view and no recommendation for change is made. As noted in the above discussion of ss 135 and 137, the Commissions consider that the principal concerns raised by this section relate to judicial practice and are best remedied by judicial and practitioner education focusing on the policy underpinning the uniform Evidence Acts’ approach to the admissibility of evidence.
 J Hunter, C Cameron and T Henning, Litigation II: Evidence and Criminal Process (7th ed, 2005), [16.5]. The common law fairness discretion is also known as the Lee discretion: R v Lee (1950) 82 CLR 133.
 R v Em  NSWCCA 374.
Papakosmas v The Queen (1999) 196 CLR 297.
 Section 66 provides an exception to the hearsay rule in criminal proceedings in respect of previous representations relating to facts which were fresh in the memory of the maker at the time those representations were made.
 Crofts v The Queen (1996) 186 CLR 427.
Papakosmas v The Queen (1999) 196 CLR 297, .
 Ibid, .
 R v Welsh (1996) 90 A Crim R 364, 369, per Wood CJ at CL.
Roach v Page (No 11)  NSWSC 907.
 Ibid, .
 R v Dann  NSWCCA 185.
 Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 12–10.
 See Ibid, Q 12–11.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [14.95], [14.97].
 S Finch, Consultation, Sydney, 3 March 2005; NSW Crown Prosecutors, Consultation, Sydney, 11 February 2005.
 Judicial Officers of the Supreme Court of the ACT, Consultation, Canberra, 8 March 2005; ACT Bar Association, Consultation, Canberra, 9 March 2005.
 New South Wales District Court Judges, Consultation, Sydney, 3 March 2005; B Donovan, Consultation, Sydney, 21 February 2005; T Game, Consultation, Sydney, 25 February 2005; Judicial Officers of the Supreme Court of the ACT, Consultation, Canberra, 8 March 2005.
 P Bayne, Consultation, Canberra, 9 March 2005.
 Judicial Officers of the Federal Court of Australia, Consultation, Melbourne, 18 August 2005; Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.
 H Sperling, Submission E 54, 11 July 2005; Justice K Lindgren, Submission E 102, 23 September 2005.
 H Sperling, Submission E 54, 11 July 2005.
 P Bayne, Consultation, Canberra, 9 March 2005.
 Justice K Lindgren, Submission E 102, 23 September 2005.
 These concerns are addressed in the discussion of ss 135 and 137 earlier in the chapter.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [14.97].
 See Rec 3–1.