The proviso to s 6 of the Criminal Appeal Act 1912 (NSW) may be applied to dismiss a conviction appeal without resolving difficult evidentiary questions about the admissibility of tendency evidence where the remaining evidence of guilt is overwhelming. The relationship between the Pfennig v R test and the statutory requirements of ss 97 and 101 of the Evidence Act 1995 (NSW) for tendency evidence remains unresolved. Service of a Crown brief containing the relevant evidence may satisfy the notice requirements of ss 97 and 99.
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