Divergent approaches to the admissibility of tendency evidence in New South Wales and Victoria: The risk of adopting a more permissive approach

An apparent divergence has emerged between New South Wales and Victorian Courts of Appeal concerning the assessment of the probative value of tendency evidence, as a condition of admissibility and as a precursor to weighing the probative value of that evidence against the risk of unfair prejudice. The divergence touches upon a fundamental conflict in the criminal justice system between the public interests of pursuing conviction of the guilty and of avoiding conviction of the innocent. This tension plays out most notably in the prosecution of historical child sex offences. Consideration of psychological research reveals that, while there is strong evidence of the prejudicial potential of tendency evidence, there is no clear support for the probative value of some evidence that may be admitted under the more permissive New South Wales approach. Accordingly, the risk of convicting the innocent is of enough importance to tip the balance between these two approaches in favour of the restrictions applied in Victoria.