The pre-Evidence Act test from Hoch v The Queen, which required the Crown to negate any 'real chance' of concoction, does not apply to the assessment of tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW). The possibility of concoction or contamination may be relevant as a competing inference when assessing significant probative value, but the trial judge must not make findings as to the credibility or reliability of the tendency witnesses; those are matters for the jury. The question under s 101(2) remains an evaluative judgment reviewable on House v The King principles. The relationship between IMM v The Queen and the NSWCCA's jurisprudence on concoction/contamination under s 101 remains an open question.
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