The NSWCCA reaffirmed that restraint should be exercised in granting leave to appeal under s 5F(3)(a) against refusal of separate trials based on evidentiary rulings, and that the probative value of cross-admissible tendency evidence in multi-complainant child sexual offence cases will generally outweigh unfair prejudice where jury directions can be given. The construction of s 97A of the Evidence Act 1995 (NSW), including whether its presumption of significant probative value applies to the s 101(2) balancing exercise, remains an open question. Late filing of s 5F applications may independently justify refusal of leave.
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