Where tendency evidence bears a direct connection to the charged conduct, it is not improper for a jury to reason that the accused, having demonstrated the alleged tendency, is more likely to have committed the offence — that is the very reasoning tendency evidence supports. The passage from Sokolowskyj v R [2014] NSWCCA 55 at [48] identifying forms of prejudice must be read in the context of that case, where there was no connection between the tendency evidence and the charged conduct, and is inapposite where the tendency evidence is directly connected to the charges. Evidence of childhood offending subject to doli incapax is not to be assessed in isolation for tendency purposes but may be considered with all other evidence to be adduced. The question of whether the possibility of concoction must be considered at the admissibility stage under ss 97(1)(b) or 101(2) remains unresolved.
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