A ruling under s 100(1) of the Evidence Act 1995 (NSW) refusing to dispense with the tendency evidence notice requirement is appealable under s 5F(3A) of the Criminal Appeal Act 1912. On an application under s 100(1), the principal considerations are the probative value of the evidence and any prejudice caused by the failure to give notice — not delay since the events or the general discretion under s 137. When assessing tendency evidence under s 101(2), the court must consider the cumulative effect of the evidence rather than each allegation in isolation, and must give adequate reasons identifying the specific unfair prejudice and why it outweighs probative value. The fact that the accused has not been charged with offences arising from the tendency evidence is irrelevant to the s 101(2) assessment.
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