Evidence of prior criminal conduct tendered to prove an accused was engaged in a particular criminal enterprise (e.g., drug dealing) and to rebut a defence of innocent association is tendency evidence governed by ss 97 and 101(2) of the Evidence Act 1995 (NSW), not by the general exclusionary provisions in ss 135 and 137. Where evidence is tendency evidence, ss 135 and 137 have no additional operation. The majority's characterisation was contested by Beazley JA, who would have held the evidence was admissible for a non-tendency purpose following Harriman v The Queen and R v Quach.
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