Tendency evidence under s 97 of the Evidence Act 1995 (NSW) does not require 'underlying unity', 'modus operandi' or a 'pattern of conduct'; the test is whether the evidence has 'significant probative value', and the extent and nature of similarity is relevant but not determinative. The assessment under s 101(2) of the prejudicial effect of tendency evidence is an evaluative judgment, not a discretion, but is reviewed on appeal applying House v The King principles. Pre-trial publicity, including social media coverage, does not of itself warrant a permanent stay; the question is assessed retrospectively by reference to what actually transpired at trial. Crown prosecutors should not invite juries to 'tell' an accused anything; the delivery of verdicts is a matter of dispassionate fact-finding, not emotive communication.
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