In the Australian Uniform Evidence Law (‘UEL’),
it is given effect by section 137.
Development of the related jurisprudence has been fraught. Appellate courts of the two largest UEL
jurisdictions adopted contradictory positions on the question of how probative value ought to be
determined, setting the matter on a course to the High Court. It was considered in IMM v The Queen
in which a majority held that assessment of probative value does not require assessment of
the reliability of the evidence or the credibility of its source.
It suggested that instead, the probative
value of the evidence will depend on how ‘convincing’the evidence appears to be, and illustrated
the application of this approach with a solitary example of an identiﬁcation made on a foggy night.
This passage and the IMM majority judgment have attracted signiﬁcant criticism for hobbling an
evidence law safeguard and for introducing confusion into the law.
Approaching IMM from
linguistic and empirical standpoints, we evaluate the last 4 years of IMM jurisprudence, ﬁnding that
these concerns have been borne out.
It has been suggested that the approach adopted by the majority has diminished an important
safeguard, and as indicated by the passages from post-IMM judgments (eg the above epigraph),
appears to have caused some confusion among those who are required to follow it. Assessment of
probativevalue is central to the UEL’s safeguardsagainst the risk of wrongfulconviction.
as to what the High Court meant when it stated that assessment of probative value requires the
‘convincingness’of evidence to be taken intoaccount, rather than its reliability, is likely to accentuate
inconsistencies in the evaluation of probative value.
Convincingness is an unfamiliar term, and one
that draws on the subjectivity of the particular decisionmaker. Reliability, on the other hand, is a well-
known evidence law concept that generally describes the evidence’s accuracy and trustworthiness.
2. R v Morris  2 SCR 190; Federal Rules of Evidence, 28 USC r 403; Police and Criminal Evidence Act 1984, c 60, s
78; Pentland v The Queen  QSCPR 10  (‘Pentland’).
3. Uniform Evidence Law (‘UEL’).The UEL is incorporated into the laws of the Commonwealth (Evidence Act 1995 (Cth)),
the Australian Capital Territory(Evidence Act 2011 (ACT)), New South Wales (Evidence Act 1995 (NSW)), the Northern
Territory (Evidence (National Uniform Legislation) Act 2011(NT)) (‘NT Evidence Act’), Tasmania (Evidence Act 2001
(Tas)) and Victoria (Evidence Act 2008 (Vic)), as well as Norfolk Island (Evidence Act 2004 (NI)).
4. S 137 reads: ‘In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative
value is outweighed by the danger of unfair prejudice to the defendant’.
5.  HCA 14 (‘IMM’).
6. Ibid , , . This position deviates from other accusatorial trial jurisdictions, including Australian states that have
retained the common law: Pentland (n 2) ; White Burgess Langille Inman v Abbott and Haliburton  2 SCR 182
7. ‘On the present state of the law, therefore, the judge in a criminal trial is unable to perform the “gatekeeper”Role…’:
Chris Maxwell, ‘Preventing Miscarriages of Justice: The Reliability of Forensic Evidence and the Roleof the Trial Judge
as Gatekeeper’(2019) 93(8) Australian Law Journal 642, 643. See also Gary Edmond, ‘Icarus and the Evidence Act:
Section 137, Probative Value and Taking Forensic Science Evidence “At Its Highest”’ (2017) 41(1) Melbourne
University Law Review 106; David Hamer, ‘The Unstable Province of Jury Fact-Finding: Evidence Exclusion, Probative
Value and Judicial Restraint after IMM v the Queen’(2017) 41(2) Melbourne University Law Review 689; Andrew
Roberts, ‘Probative Value,Reliability and Rationality’in Andrew Roberts and Jeremy Gans (eds), Critical Perspectives
on the Uniform Evidence Law (Federation Press, 2017) 63. Two practitioners expressed confusion over it: Stephen
Odgers and Richard Lancaster, ‘The probative value of evidence’(Winter 2016) Bar News 36.
8. See, eg, ss 97, 97A, 98, 101, 135, 137.
9. Benjamin Johnson and Richard Jordan, ‘Should Like Cases Be Decided Alike?: A Formal Analysis of Four Theories of
10. IMM (n 5)  (Nettle and Godon JJ), contrastingreliability with credibility (or the whether the witness is intentionally
being truthful or not).
Chin et al 105