On an interlocutory appeal under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) from a ruling on the admissibility of tendency evidence, the correctness standard of review applies, not the House v The King deferential standard, because the question of significant probative value admits of only one correct answer. However, this proposition was expressed by Basten JA alone; Johnson J and R A Hulme J declined to join in this reasoning, holding the point unnecessary to decide. Where the High Court has allowed an appeal with reasons reserved, a trial judge should not rely on the transcript of argument to divine the Court's reasons, but should apply existing authority.
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