Under the Evidence Act 1995 (NSW), the risk of concoction or contamination of tendency or coincidence evidence does not operate as a categorical bar to admissibility as it did under Hoch v The Queen. Instead, it is a factor to be weighed in the balancing exercise under s 101(2), requiring a nuanced assessment dependent on the circumstances of the particular case. The line of authority in BP v R, R v Colby, R v OGD (No 2) and R v F, which applied the Hoch categorical exclusion under the Evidence Act, should not be followed. The standard of appellate review for such rulings involves a level of constraint close to the House v The King principles.
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