The assessment of the probative value of tendency evidence requires two distinct inquiries: first, whether the evidence is capable of proving the alleged tendency, and second, whether the tendency itself is capable of proving a fact in issue at trial. A trial judge who assesses only the first question without articulating how the tendency proves a specific fact in issue commits an error that may warrant the admission of the evidence being set aside. In cases where the disputed fact is the accused's identity as the perpetrator (rather than whether the conduct occurred or the accused's state of mind), tendency evidence showing the accused is 'the sort of person' who could have committed the offence is insufficient — the tendency must be shown to be probative of the accused's presence or identity. On applications for leave to appeal out of time, the threshold for miscarriage of justice is a 'simple' miscarriage, not the 'substantial' miscarriage required under the proviso on the appeal itself.
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