Section 97A(5) of the Evidence Act 1995 (NSW) prevents courts from considering the factors in paragraphs (a)-(f) when assessing whether the presumption of significant probative value is rebutted, unless there are 'exceptional circumstances'. The mere existence of differences between the tendency sexual acts and the alleged sexual acts (i.e. the bare enlivening of the factors in paragraphs (a)-(f)) does not constitute 'exceptional circumstances'; something more is required, either the presence of one or more listed features in an exceptional degree or some other exceptional circumstance outside the range of paragraphs (a)-(f). Where tendency evidence involves offences of markedly different gravity across complainants, s 101(2) may operate to exclude the more serious evidence from the trial of less serious charges due to the danger of unfair prejudice, even where the presumption of significant probative value under s 97A(2) is not rebutted.
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