Section 101 of the Evidence Act 2011 (ACT), which requires probative value to substantially outweigh prejudicial effect, applies only to tendency evidence adduced by the Crown, not by the accused; the accused need only satisfy the s 97(1)(b) threshold of significant probative value. Tendency evidence of a complainant's violent conduct approximately 16 years old, committed when the complainant was in his early twenties, and dissimilar to the fact in issue (the manner of running across a road), lacks significant probative value. A trial counsel's decision not to cross-examine a complainant on dated, non-dishonesty criminal convictions is a rational forensic decision that does not give rise to a miscarriage of justice.
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