This provision has not been checked by a human. The text below was read automatically from the official PDF and has not yet been verified against it, so it may differ from the provision as published — in its wording, its numbering, or where one provision ends and the next begins. For the authorised text, see legislation.vic.gov.au.
sets out the exclusionary rule for tendency evidence. The rule ("the tendency rule") deals with the admission of evidence of a person's character, reputation, conduct or tendency where the evidence is being admitted to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind. There is an exception to the tendency rule. Tendency evidence can be admitted under this clause if appropriate notice is given (or the court dispenses with the notice requirement under clause 100) and the court finds that the evidence has significant probative value. Under clause 97, the court is to admit the evidence if it has significant probative value. Probative value is a defined term. The probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Once the evidence is found to have probative value, the exception applies where the court thinks the probative value is significant. Although the term "significant" is not defined, it is not intended to mean "substantial". The 2005 LRCs' Report concluded that the term is well defined in common law, and means something more than mere relevance, but less than a substantial degree of relevance. Whether the probative value of the evidence is significant or not will depend on the circumstances of the case and the fact(s) in issue. The court can consider the evidence alone, or in relation to other evidence. See clause 101 below for an additional consideration regarding admissibility of tendency evidence in relation to criminal proceedings. The exclusionary tendency rule does not apply to tendency evidence adduced to explain or contradict tendency evidence adduced by another party. Such evidence is not excluded under this clause. The Note to clause 97 sets out that other specific exceptions to the tendency rule are contained in clauses 110 and 111 of the Bill. These specific exceptions relate to character evidence of an accused, and permit the admission of evidence, in some circumstances, that would otherwise be inadmissible due to the tendency rule.