Propensity evidence of prior convictions involving car theft and violent resistance to arrest lacks significant probative value on the issue of identity under s 31A of the Evidence Act 1906 (WA) where the conduct disclosed is not sufficiently distinctive or does not bear any particular identity, special feature or unique stamp. When propensity evidence is admitted, the trial judge must give a careful direction identifying the alleged probative effect of the particular evidence, explaining how it may be employed for that purpose, and warning that mere bad character or prior convictions cannot of themselves justify a conclusion that the accused committed the offence charged. A direction that propensity evidence may be used to 'bolster' other evidence, without identifying what is distinctive about the propensity evidence, is inadequate and amounts to a misdirection.
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