Where a severance application is heard by a judge who will not be the trial judge, the judge's task is to make a predictive assessment of whether tendency or coincidence evidence would be admissible in hypothetical separate trials, not to rule on admissibility. Once s 101 of the Evidence Act 1995 is satisfied (probative value substantially outweighing prejudicial effect), there is little if any further room for the operation of ss 135 or 137. Section 101(2) should be treated as a rule of admissibility despite its language suggesting it governs use of evidence already admitted.
The full text is available to signed-in members, including the 18 later cases that cite this judgment.
3 of the 18 citing cases carry a classified treatment. How each court treated it is available to signed-in members.