Evidence Act 1929

In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—

cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

is inadmissible for that purpose (impermissible use);

subject to subsection (2), is inadmissible for any other purpose.

Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—

the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and

in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.

The court may, if it thinks fit, dispense with the requirement in subsection (4).