When assessing whether coincidence evidence has 'significant probative value' under s 98(1)(b) of the Evidence Act 1995 (NSW), the trial judge must consider whether there is a real possibility of an alternative explanation inconsistent with guilt arising from the Crown evidence, and must ask whether that possibility substantially alters the judge's view as to the significant capacity of the evidence to establish the facts in issue. However, the judge must not engage in a comparative assessment of the probabilities of competing hypotheses or weigh competing inferences — those are jury functions. The formulation in R v Zhang is broadly correct but must be understood as requiring the judge's own assessment of the capacity of the evidence, not a prediction of what the jury will do.
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