The common law 'no rational explanation' test from Pfennig v The Queen does not apply to the admissibility of tendency and coincidence evidence under s 101(2) of the Evidence Act 1995 (NSW). The statutory test — whether probative value 'substantially outweighs' prejudicial effect — operates according to its own terms and requires a genuine balancing exercise on the facts of each case. However, there may be cases where the facts are such that the statutory test cannot be satisfied unless the Pfennig standard is also met. The line of NSWCCA authority from R v Lock (1997) applying the Pfennig test to the statutory provisions is no longer to be followed.
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