When assessing the probative value and prejudicial effect of tendency evidence under ss 97(1) and 101(2) of the Evidence Act 2008 (Vic), the availability of defences — including the defence of accident — is not a relevant consideration. The court must proceed on the assumption that the tendency evidence will be accepted by the jury, and on that assumption, the nature of the defence to be advanced cannot diminish probative value or increase prejudicial effect. Evidence that tends to defeat a defence (such as accident) constitutes legitimate prejudice, not unfair prejudice.
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