Tendency evidence based on prior sexual offending that is markedly dissimilar to the charged offence (here, public exhibitionism relied upon to prove a private indecent assault on a child) may lack 'significant probative value' under s 97(1)(b) of the Evidence Act 1995, particularly where the tendency is stated at a high level of generality. A trial judge must actually assess the risk of unfair prejudice before concluding that judicial directions will be sufficient to cure it; an assumption that directions will be effective, without analysis of the prejudice, constitutes error. The question whether the House v The King or Warren v Coombes standard governs appellate review of tendency evidence rulings remains unresolved.
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