A determination to admit propensity evidence under s 398A(2) of the Crimes Act 1958 (Vic) is a question of law, not discretion, and is reviewable by an appellate court which may substitute its own judgment. Where propensity evidence is tendered to prove identity, it must possess striking similarity, a hallmark, or underlying unity with the charged offences; the court cannot assume the accused committed the charged offence in order to establish the probative value of the similar fact evidence. The s 398A(2) test, while abrogating the 'no other reasonable explanation' test from Pfennig, does not set at nought the body of common law principles governing propensity evidence and will not greatly alter the conduct of criminal trials.
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